OFFICE OF THE ATTORNEY CENERAL OF TEXAS AUSTIN

Honorable John Lawson County Attorney San Patricia County Sinton, Texas Dear Sir: OpinionNo. O-6589
Re: Under the provisions of Article 707,-Penal Code of Texas, is a bottier of soda water committingan offense by adding "saccharin" to his product?
From your letter requesting our opinion,we quote the following:
"Abottler of soda water who vends soda water in'this county has been arrested by an official of the state health department, and chargedby complaint 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'" '~ strengthhad.been lowered and that such saccharin had,been substituted for sugar. "Thewriter 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.,bfsaccharin for sugar 'inthe 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 ~ofsugar as a sweetening agent. IHonorable 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,~whethersimple,mixed orecompounded:."The soda water of which you inquire is' therefore classifiedas food within the meaning of Article 707,. Penal Code, which reads, in part, as follows:

'For the purposes of this chapteran article shall be deemed to be adulterated:~

"(c) In the

with ;?:oi%93: feet its quality Y(2) .lfany case of food;

substancehas been mixed and packed reduce'or lower or Injuriouslyafor strength;' substancehas been substituted wholly or in part ~for.thearticle;. "(3)'lfany'valuable constituentof 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.orpowdered, coated

manner whereby damage or inferiority .:. "(5) if It contains any added poisonous or other added deleterious Ingredientwhich may render such article Injurious to health, provided, thatwhen in the preparation of food products for shipment they are preserved by any external applicationapplied in suchmanner that the preservative is necessarily removed mechanically, or by maceration in water or otherwise, and directions for the removal of said preservativeHonorableJohn Dawson, page 

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shall be printed on the covering of the package, the provisions of thisAct shall be construedas 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 vegetableuzzfit for food, whether manufactured or not, or If it is the product of a diseased anizal, or one thathas died otherwise than by slaughter.
" * * * "
Your question to us is whether or not the use of saccharin in soda water constitutesadulterationwithin themeaning of the above statute.

We fall to find ang,Texas statuteprohibiting the use of saccharin in lieu of sugar as a sweeteningagent $n themanufacture of bottled beverages. The law~fixes'no standard for sweetness of soda water, nor does it ,.otherw$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 chargedwith 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,washeld that- In a prosecution for violating the Food and Drygs~Act of.June 

### 30,'19Q6 (21Ui S. C. A. 8 10) by adulterating macaroons by.the addition of ~glucose, since therewas 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 truewith respect to the product of which you Lnqulre,~,shculd, in the first Instance, necessarilybe made with sugar as the sweetenLngagent.Honorable John Dawson, page 4

Saccharin is not per se unlawful,nor Is ;tts use condemnedby any Texas statute. While we claimno especial learning in the field of science, chemistry,ormedicine; themost that we have found against saccharin through Investigationof available authorities, is that It is non-nutritiveand of no food value, and especiallywhen used lnsuch small amounts as to sweeten and thus impart a palatable flavor ,toso&water, Is not.harmful. See, e. g., ScientificAmerican, December 1942, p. 269, quoting Journal ofAmerican MedicalAssociation.

1.tis our opinion that a prosecution such as you mention is not warranted on the grounds of adulterationas same is defined inArticle 707, Penal Code, supra,because of the lack of prescribeddefinite standards fixed for soda water in compliancewith the general objects,principlesand rules of interpretationset 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.dlrectyour~attention to theholdina of the Federal.Foodand DrugAdmlnlstratibn. -In response to &'letter.written upon'recelpi of. youroriginal inquiry,we have receiveda communicationfrom that agency reading, Lnpart, as follows: ~,,.,,, ,~

. "Receipt is acknowle&ed of.your~.letterofJuly' 5, 1945, requesting informationas to regulations of the Federal Governmentwhich may restric,t the use of saccharin $n bottled beverages.
'No formal regulationdealing with the use of saccharin in beverages for general consumptionhas been issued. The Food and Drug AdmInIstration, in connectionwith the enforcement of the Food, Drugi and CosmeticAct of 1938, has expressed the opinion that saccharinwhen used In foods to replace sugar renders the food In which so used adulteratedwithin themeaning of section 402(b) (1) and (2)'of-theAct Ln thata valuable constituenthas bean in whole or in part omitted, and that the non-nutritive substance, saccharin,has been added thereto so as to reduce ItsHonorable John Lawson, page 

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quality of strength or make it appear better or of greater value than it Is. A number of actions have been taken against foods, includingbottled beverages, alleged to be adulterated in this way. In no recent instancehave such allegationsbeen contested. A copy of Notice of Judgment 

### 5602 showing termination of an factionagainst carbonatedbeverages Is enclosed. "Certainfoods intended for special dietary,use by persons, such as those suffering from diabetes, who may wish to use a food sweetenedwith saccharinbut containingno sugar, are not consideredadulterated as outlined above if such special dietary foods are actuallywhat 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 '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 nonnutritive and are coveredby the requirements of this. section." Trusting that .theabove 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