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 Article 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 complaint w$th,the offense of selling snd,offering 

for saie'soda waster to 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, ,,nor does he represent that ,the~same .contalns 

sugar. 

By supplemental letter gou state that you areriot '. 

worried about any mislabeling or misbranding aspect of.the question, but merely %ritksh to know whether the subst$tution.,bf saccharin for sugar 'in the soda water in Issue constLtutes 'adulteration" under the provisions of Article 707, Penal Code. .'You 

also state that the manufacturer Isnot makw his soda wat~er by 

a patented formula'which calls for the use ~of sugar as a sweetening 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 ore compounded:." 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 

with ;?:oi%93: 

feet its quality 

Y(2) .lf any 

case of food; 

substance has been mixed and packed 

reduce'or lower or Injuriously afor strength;' 

substance has been substituted 

wholly or in part ~for .the article;. 

"(3)'lf any'valuable constituent of the article 

has been wholly or in part abstracted, or if the product be below that standard of quality, quantity, 

strength or purity represented to the purchaser or 

consumer. 

or st$~d%i'~ 

Is concealed; 

be mixed; colored.or powdered, coated 

manner whereby damage or inferiority 

.:. 

"(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 removed mechanically, or by maceration in water or otherwise, 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 applying only when said products are ready for consumption. 

"(6) if it consists in whole or IC part of a 

filthy, decomposed or putrid an:mal or vegetable substance, or any portion of an anlcz.al or vegetable uzzfit 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 manufacture 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 International 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 'for macaroons fixed 

by lax or otherwi&e, the defendantwas not guilty. 

.- 

We know of no reason yhy'sodawater, not made in accordance 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 ;tts use 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 ,to so&water, Is not.harmful. 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 mention 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 compliance with the general objects, principles and rules of interpretation 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 inquiry, 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,t the 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 faction against 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 actually 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 Concerning Dietary Properties 'of Fpod 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 nonnutritive and are covered by the requirements of this. 

section." 

Trusting that .the above is satisfactory, we.are 

Yours very truly, 

ATTOti GENERAL OF TEXAS 

BW:zd/JCP 

BY _ 

Benjamin Woodall 

Assistant 

APPROVED: 

Opinion Committee 

BY O.W.BtLiman