2020 Georgia Code
Title 26 - Food, Drugs, and Cosmetics
Chapter 2 - Standards, Labeling, and Adulteration of Food
Article 2 - Adulteration and Misbranding of Food
§ 26-2-26. When Food Deemed Adulterated

A food shall be deemed to be adulterated if:

1. It bears or contains any poisonous or deleterious substance which may render it injurious to health; but, in case the substance is not an added substance, such food shall not be considered adulterated under this paragraph if the quantity of such substance in such food does not ordinarily render it injurious to health;
2. It bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of Code Section 26-2-27. In regard to pesticide residues, a food shall be deemed to be adulterated and unsafe if it bears a pesticide residue in excess of a tolerance established by the United States Environmental Protection Agency under the Federal Food, Drug, and Cosmetic Act or if it bears a residue of a pesticide for which no tolerance has been established or is currently in effect for that food, if such residue appears at a level which is readily quantifiable by methods of assay for pesticide residues employed by the Commissioner on the date of the assay;
3. It consists in whole or in part of a diseased or contaminated, filthy, putrid, or decomposed substance or if it is otherwise unfit for food;
4. It has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome, or injurious to health;
5. It is the product of a diseased animal or an animal that has died otherwise than by slaughter or an animal that has been fed upon the uncooked offal from a slaughterhouse;
6. Its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health;
7. Any valuable constituent has been in whole or in part omitted or abstracted therefrom;
8. Any substance has been substituted wholly or in part therefor;
9. Damage or inferiority has been concealed in any manner;
10. Any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is;
11. It is confectionary and it bears or contains any alcohol or nonnutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of 1 percent, harmless natural wax not in excess of four-tenths of 1 percent, harmless natural gum, and pectin, provided that this paragraph shall not apply to any confection containing less than one-half of 1 percent by volume of alcohol derived solely from the use of flavoring extracts or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances; or
12. It bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.

(Ga. L. 1956, p. 195, § 10; Ga. L. 1990, p. 8, § 26; Ga. L. 1990, p. 318, § 1.)

- Warranties relating to sales of goods generally, § 11-2-312 et seq.

Civil action for knowing or negligent selling of unwholesome provisions to another person by use of which damage results to purchaser or his family, § 51-1-23.

ANALYSIS

• 1. General Consideration

1. General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 2101, 2104, 2115 and 2117, and former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906 are included in the annotations for this Code section.

- In a negligence action by a restaurant customer who found an unwrapped condom in a salad, summary judgment was precluded by fact issues as to whether eating part of the salad was sufficient physical contact under the impact rule, and whether the customer's reaction of vomiting and becoming nauseated constituted a physical injury. Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498, 504 S.E.2d 551 (1998).

Cited in Polite v. Carey Hilliards Restaurants, Inc., 177 Ga. App. 170, 338 S.E.2d 541 (1985).

Purpose of the law against adulteration or misbranding is to protect consumers from deception or injury, and it is to be conclusively presumed that the law was adopted to prevent injury to the public health by the sale and transportation in intrastate commerce of misbranded and adulterated foods. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

3. Applicability and Definition of Adulterated Food

No liability for substance not added to food.

- Former Code 1910, § 2103 (see now O.C.G.A. § 26-2-26(1) and (2)), was not applicable, when the contention is not that the defendant had adulterated the product by adding some deleterious foreign substance to the normal constituency of the product in order to sell it as part of the product itself, but if the charge only contended that the defendant was negligent in allowing the normal ingredients of the product to become putrid and unwholesome. Armour & Co. v. Miller, 39 Ga. App. 228, 147 S.E. 184 (1929) (decided under former Code 1910, § 2103).

- Law does not prohibit the sale of substitutes for creamery butter, provided the substitute is not sold so misbranded as to deceive or so adulterated as to injure. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2101).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2115).

"Southern nut product," was held a "distinctive" name, not an imitation of creamery butter and not adulterated. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2104).

- Food was adulterated, within the meaning of former Code 1933, § 42-109 if it contained something "foreign" or "added," or if the object was a "portion of an animal unfit for food." Davison-Paxon Co. v. Archer, 91 Ga. App. 131, 85 S.E.2d 182 (1954) (decided under former Code 1933, § 42-109).

- Any portion of an animal, such as pig's liver, which is decomposed or putrid, is adulterated and unfit for food. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79, 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109 and 42-9906).

- Barbecued pork sandwich, which contained a small piece of bone which the plaintiff got caught in the plaintiff's throat, contained nothing that would render it unfit for food within the provisions of former Code 1933, § 42-109 as containing a "portion of animal unfit for food," and the defendant could not be charged with negligence per se in the violation of the former provisions so as to require the submission of the case to a jury. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949) (decided under former Code 1933, § 42-109).

Jurisdiction of federal court to enjoin wrongful confiscation of food products and prosecutions for violating former Code 1910, § 2101 (see now O.C.G.A. § 26-2-22), see Baltimore Butterine Co. v. Talmadge, 32 F.2d 904 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930) (decided under former Code 1910, § 2117).

5. Indictment

Indictment sufficient.

- Indictment charging that the defendant unlawfully sold "adulterated food," in that defendant sold to a named person "a portion of an animal, to wit, a diseased cow, unfit for food, that had died otherwise than by slaughter," was not subject to demurrer (now motion to dismiss) because of failure to show compliance with statutory provisions as to examination of food by or under the direction of the state chemist. Evitt v. State, 23 Ga. App. 532, 98 S.E. 737 (1919) (decided under former Code 1910, § 2102).

Indictment not subject to demurrer (now motion to dismiss) because of failure to show how or in what way the portion sold was unfit for food, or was diseased, or what kind of product of the diseased cow was sold. Evitt v. State, 23 Ga. App. 532, 98 S.E. 737 (1919) (decided under former Code 1910, § 2102).

6. Standards of Negligence

Sale of adulterated food which causes illness is negligence per se.

- Sale of an adulterated article to a customer who was made ill by the article's consumption, in violation of former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, constituted negligence per se. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79, 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906).

- In a suit against a dealer by a person alleged to have been made ill from eating alleged adulterated food sold by the defendant, the sale of which was penal under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, which was negligence per se when the evidence authorized an inference that the food was decomposed or putrid and was therefore unfit for human consumption and adulterated as defined in the act, and that the plaintiff was made sick from eating the food, it was error for the court to instruct the jury that if the defendant exercised ordinary care in the sale of the food the plaintiff could not recover. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79, 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906).

- In a suit for damages against a seller of unwholesome food, the plaintiff may establish negligence as a matter of fact, or the plaintiff may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, former Code 1933, § 42-109, or plaintiff may rely on both classes of negligence. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949) (decided under former Code 1933, § 42-109).

- In a suit against a retailer of meats, when the plaintiff alleges that the defendant sold some pig's liver which on the same day was cooked and eaten by the plaintiff's family all of whom became ill on the following morning, that when it was sold the liver was decomposed and unwholesome, contaminated by infectious matter, and unfit for food, that it poisoned the plaintiff, that the defendant was negligent in not inspecting the liver in holding it out as fresh and wholesome when it was not fit for human use, in not warning the plaintiff of the unwholesome condition and in selling the liver for human consumption in the unwholesome condition described, "which was a violation of state law," the petition was sufficient for recovery for a violation by the defendant of the statutory duty resting upon defendant, as contained in the provision of former Code 1933, §§ 42-109, 42-115, 42-9901 and 42-9906, making it a violation of law for the defendant to sell an article of food in the unwholesome and deleterious condition described. Donaldson v. Great Atl. & Pac. Tea Co., 59 Ga. App. 79, 200 S.E. 498 (1938) (decided under former Code 1933, §§ 42-109, 42-115 and 42-9901).

Candy that contains a small quantity of bourbon flavor or is bourbon flavored is adulterated. 1957 Op. Att'y Gen. p. 144.

- Former Code 1933, § 2103 was sufficient to prohibit the reuse of fiber separators between layers of apples unless adequate provisions had been made to sterilize or otherwise render the separators suitable for use. 1960-61 Op. Att'y Gen. p. 1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 35A Am. Jur. 2d, Food, §§ 18, 20, 39.

- 36A C.J.S., Food, § 23.

- Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385.

Preservative as adulterant within statute in relation to food, 50 A.L.R. 76.

Statutes or ordinances in relation to confectionery, 58 A.L.R. 293.

Constitutionality of statutes, ordinances or other regulations against adulteration of food products as applied to substances used for preservative purposes, 114 A.L.R. 1214.

Infected or tainted condition of milk or other food, or contamination in water, and its causation of the sickness of the consumer, as inferable from such sickness, 130 A.L.R. 616.

Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from middleman, 140 A.L.R. 191; 142 A.L.R. 1490.

Implied warranty of fitness by one serving food, 7 A.L.R.2d 1027, 87 A.L.R.4th 804, 90 A.L.R.4th 12.

Construction and application of Federal Food, Drug, and Cosmetic Act § 402 (a)(3) [21 USC § 342 (a)(3)] as to food deemed "adulterated," if it is filthy or the like, or unfit for food, 45 A.L.R.2d 861.

Coloring matter as forbidden adulteration of food, 56 A.L.R.2d 1129.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.