c33:No. 37, Docket 21697

CHASE, Circuit Judge
(Dissenting) :
The appellants were charged in count one with adulterating the blended oil (1) by omitting olive oil, which was a valuable constituent, in whole or in part; and (2) by adding squalene “so as to make said food appear to be better and of greater value, viz., an article containing more olive oil than present in said food.”
They were charged in count two with misbranding for the same reasons, i.e., (1) omitting olive oil and (2) adding squalene.
The blend was branded as one containing 80% peanut oil and 20% olive oil. The only reliable proof of the percentage of olive oil in it was the proof of the amount of squalene. Squalene is found in olive oil in varying percentages depending upon the conditions under which the olives from which it is made are grown. So if a blended oil, when tested, is found to have at least as much squalene as any olive oil content of 20% would give it, there may be at least 20% of olive oil in it. But the greater the percentage of squalene the greater the percentage of olive oil apparently, and so the better the blend appears to be for, absent adulteration, t'he percentage of squalene varies directly with the olive oil content.
This blend when tested did show that much squalene and so the trial judge did not find any misbranding. We cannot, of course, disturb that finding. But it was made in the face of the fact that the same judge also found on adequate evidence that shark liver squalene had been added to the blend. This addition of squalene certainly required extra effort to say nothing of extra expense in making up the blend and that the addition was made to cover up an actual deficiency in olive oil, the more costly ingredient" in the blend, was an inference plainly to be drawn from the" known facts. Had the blend Contained 20% of olive oil there would have been no advantage to be gained by adding squalene for there was no reason to spend money, time and effort to make it appear to be better than it was labeled. And when it was proved and found that shark liver squalene was put into the olive and peanut oil blend it was also proved, and it should have been found, that there was less olive oil in the blend than 20%.
However,-my present concern is not primarily with an error which we cannot reach on appeal but with trying to prevent that error from being more far reaching than it should be. As to the charge of misbranding the acquittal must stand. But this failure to draw the proper inference of fact as to a deficiency in olive oil affected the first count charging adulteration only "in part in that adulteration by the omission of olive oil was not found. Just as in respect to the misbranding charged in the second count what seems to 'have been the only fair inference was not drawn to establish adulteration by the omission of olive oil.
Nevertheless, when the judge came to deal with adulteration by the addition of shark liver squalene he did find that it was added to the blend “in order to make the same appear to be better and of greater value.” He was not so handicapped as 'he had been before as to drawing permissible inferences from proved facts and in this respect gave effect to the inference that the shark liver squalene was added to make the blend appear to contain more olive oil than it actually did contain. The added squalene deceived the enforcement officials as to the actual olive oil content and brought such adulteration squarely within the scope of the statute.
I would affirm t'he judgment.

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