View report page

277 1906
(1) Whether the use of such materials (i.e., preservatives and colouring matters) or
of any of them, for the preservation and colouring of food, in certain quantities
is injurious to health, and if so, in what proportions does their use become
injurious.
(2) To what extent, and in what amounts are they so used at the present time.
The Committee made no answer to the first question. They were not asked to make
recommendations which, however, they did make, and, strictly speaking, all these recommendations
are ultra vires as not being within the terms of reference.
Even had these recommendations been strictly within the terms of reference, they cannot
alter the law.
What has to be considered in taking proceedings is the question as to what proceedings
are authorised by the Acts.
In the event of proceedings being taken on account of the presence of preservatives in
milk, they would have to be taken under Section 6 of the 1875 Act, for the sale of an article
to the prejudice of the purchaser which is not of the nature, substance, and quality of the
article demanded. But this Section goes on to say: "Provided that an offence shall not
be deemed to be committed under this Section in the following cases; that is to say,
(1) Where any matter or ingredient not injurious to health has been added to the
food or drug because the same is required for the production or preparation
thereof as an article of commerce, in a state fit for carriage or consumption,
and not fraudulently to increase the bulk, weight, or measure of the food or
drug, or conceal the inferior quality thereof."
It has been held that this proviso means that the introduction of the injurious ingredient
must be in such amount as to render the article injurious to health in order to constitute
an offence.
To my mind this proviso allows the addition of preservatives and colouring matters
in any proportion provided that the article is not thereby rendered injurious to health.
This view is confirmed by reference to the Schedule of the 1875 Act, footnote (d), "Here
"the analyst may insert at his discretion his opinion as to whether the mixture (if any) was
"for the purpose of rendering the article portable or palatable, or of preserving it, or of
"improving the appearance, or was unavoidable, and may state whether in excess of what
"is ordinary, or otherwise, and whether the ingredients or materials mixed are or are not
"injurious to health."
This footnote is just a paraphrase of the proviso just quoted, and includes the word
"preserving," which I am of opinion comes under the heading of "preparation thereof as
an article of commerce in a state fit for carriage or consumption."
That the Acts contemplated and approved the employment of preservatives is again
shown in the Margarine Act, 1887, Section 3: "The word ' butter ' shall mean the substance
"usually known as butter .... with or without salt or other preservative, and with
or without the addition of colouring matter."
To clinch the matter I would refer you to Section 1 of the 1899 Act, last paragraph :
"Provided that an article of food shall not be deemed to be adulterated by reason only
"of the addition of any preservative or colouring matter of such nature and in such quantity
"as not to render the article injurious to health."