Appeal, No. 8, May T., 1955, from decree of Court of Common Pleas of Dauphin County, 1954, in Equity, No. 2105, and Commonwealth Docket No. 2, in case of Cott Beverage Corporation and Cott Bottling Co. of Pittsburgh v. Miles Horst, Secretary of Agriculture and Frank F. Truscott, Attorney General. Decree affirmed.
Samuel M. Jackson, Deputy Attorney General, with him Robert H. Maurer, Deputy Attorney General, and Frank F. Truscott, Attorney General, for appellants.
Charles E. Delong, with him Henry A. Frye and Moffett, Frye & Leopold, for appellees.
Before Stern, C.f., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Questioned here are the applicability of certain statutes of the Commonwealth to the article in controversy and their constitutionality if so applied.
The article in controversy is Sucaryl, which is a synthetic, non-nutritive, non-caloric, artificial sweetening agent recommended by physicians in the treatment of obesity and diabetes, but purchasable in any drug store without a doctor's prescription. Beverages sweetened by its are presently sold in at least 34 of the States from Maine to California. It may be prepared either as calcium cyclamate or sodium cyclamate, and in liquid, tablet or powder form. It is a trade-name product manufactured by the Abbott Laboratories of Chicago.
Plaintiff Cott Beverage Corporation manufactures and sells a sugar-free (dietetic) brand of non-alcoholic carbonated beverages sweetened with sucaryl. Plaintiff Cott Bottling Company of Pittsburgh is a licensee of Cott Beverage Corporation authorized to distribute such beverages in Pennsylvania. Plaintiffs filed applications to register their beverages to sweetened; they received certificates of registration from the Department of Agriculture but subsequently were advised by the Department that the certificates were not intended to confer any exemption from the provisions of the law regarding such beverages. Thereupon plaintiffs filed a bill in equity in the Court of Common Pleas of Dauphin County alleging the likelihood of a multiplicity of suits against them for the recovery of fines and penalties and seeking to enjoin the Secretary of Agriculture and the Attorney General from enforcing certain provisions of the law which would in effect prohibit the manufacture of carbonated beverages or still drinks containing artificial sweetening agents. The court entered a decree restraining and enjoining defendants
from prohibiting plaintiffs from selling non-alcoholic carbonated beverages containing sucaryl and no honey, sugar or dextrose, and from requiring on such drinks a certain label prescribed by the Department of Agriculture. From that decree defendants appeal.
The Acts involved are these: The Act of May 14, 1925, P.L. 730, § 5, as amended, provides that "No carbonated beverages or still drinks shall be made except from syrup containing pure honey or pure refined cane or beet sugar or pure refined dextrose .... Such carbonated beverages or still drinks shall contain not less than eight per centum sugars by weight." It further provides that all carbonated beverages or still drinks shall be deemed to be adulterated which are not in compliance with the above provisions of the section, or which contain any of the ingredients prohibited by section 3 of the Act of March 11, 1909, P.L. 15, or which contain "any other substance deleterious to health." Section 3 of the Act of Amrch 11, 1909, P.L. 15, thus referred to, provides that a non-alcoholic drink shall be deemed to be adulterated, within the meaning of the act, if, inter alia, it contains dulcin, glucin, saccharin (which are artificial sweetening agents) or "other added substance deleterious to health." The Act of May 13, 1909, P.L. 520, entitled "An Act relating to food," etc., as amended, provides, section 3, that an article of food shall be deemed to be adulterated if, inter alia, it contains saccharin, "or other artificial sweetening agents"; provided, however, that "any article of food containing saccharin or any artificial ...