EXCESS WATER IN BUTTER

Evening Star, Issue 22804, 12 November 1937, Page 8

EXCESS WATER IN BUTTER

ONUS ON MANUFACTURER REASONABLE CARE NOT TAKEN DAIRY COMPANY CONVICTED Holding that the Silvcrstream DairyCompany had not taken all reasonable steps to prevent excess moisture in butter and that the company, by its manager, was careless in respect to the churnings of the butter, Mr H. W. Bundle, S.M , in a reserved judgment given in the Police Court to-day, convicted the company on three informations of selling butter containing a. greater proportion of water than is permitted by Regulation 46 (1) of regulations made under the Sale of Food and Drugs Act, 1908 The charges were in respect of sale on June 1 of (1) lib ‘ Carnation ’ brand butter containing 17.16 per cent water, (2) lib ‘ Silverstream ’ brand butter containing 16.43 per cent water, (3) 11b whey butter containing 16.38 per cent, water. “ Objection was taken to the delay in proceedings but I think this is accounted for by the anxiety of the defendant company in endeavouring to prevent the Health Department prosecuting,” said the Magistrate. _ “ The analysis in each case is not disputed. The defendant company claims that it took all reasonable steps by testing and otherwise to ascertain that the butter_ did not contain more than the permitted quantity of water, and that it is relieved from liability under Section *3 of the Sale of Food and Drugs Act 1908. Defence under this section has been frequently raised. The meaning to be given to it was discussed by Mr Justice Chapman in Canterbury Central Co-op-erative Dairy Co. Ltd. v. M'Kenzie He says: “ An acquittal on,this ground (Section 13) is not secured by showing that in the ordinary sens© reasonable care has been taken; the very words of the section must be pursued, and the fendant must prove that all reasonable steps have been taken to avoid an offence. The onus is on him to show that within practical limits no other steps could have been taken.’ “ I have therefore to consider whether an excess of moisture could not properly have been safeguarded against. After carefully considering and weighing the evidence the position appears to me to be that either the system of testing by the defendant company is deficient in determining moisture contents or that the particular butter was not properly tested. There can be no question that the defendant company is usually careful in manufacturing butter and that its plant and appliances generally are good. This is admitted by the prosecution.

“ The permitted amount of moisture generally accepted by most countries is not more than 16 per cent. This being the amount allowed, it is Obvious that the closer a manufacturer can go to the limit the greater his profits. It was stated by one witness that if butter marketed at 15.2 per cent., instead of 15.85 per cent., the resultant loss for the particular factory he was discussing would be £2,000 per annum. “ The method adopted for checking moisture during manufacture by the defendant company was explained by Mr Dyer, manager of the company. This niethod seems to be general method adopted by dairy companies, and if properly carried out should result in moisture contents being reasonably accurately checked. I have found that the system if properly carried out is a sufficient test, and I am forced to the conclusion that the system could nob have been properly carried out, in that the churning or churnings of which the butter in respect of which the charges are laid form part were not properly tested by the defendant company’s manager. “ It is apparent that in the case of reworked frozen butter and in other cases special difficulty may arise in fixing even water content, but this is a difficulty which is known to manufacturers and must be guarded against by exercisin'! 1 ; special precautions. _ The Act is aesigned for the protection of the public ‘ to ensure pure food at the risk of the purveyor.’ “ The defence in effect is that through some unforeseen circumstances an excess of moisture may and did occur which could not reasonably have been guarded against. lam quite unable to see that it couM not have been There is an obvious safeguard for the protection of the manufacturer, and to ensure the public shall not be given butter containing excess moisture. Ample allow an oe should be made during manufacture that moisture contents should not bo exceeded. It may well be that decision in Kershaw v. Smith was justified in the facte before the court. I do not think the facts as reported show that onus cast on the defendant under section 13 was sufficiently discharged. “ In the p.Lvsent case the defendant company so far from discharging the onus under section 18, expressly admits in a letter of June 28 that it did not take all reasonable steps. Only one meaning can be taken from this—that the defendant company, by its manager, was careless in respect of the churnings of the butter in respect of which charges are laid.” The company was convicted on each charge. On the information in respect of Carnation butter, it was fined £5, with court costs 10s, analyst’s fee 10s 6d, and solicitor's fee £3 3s. On the other two informations it was ordered to pay court costs 10s, analyst’s fee 10s 6d, and solicitor’s fee £3 3s. At the hearing Mr E, Tuckwell prosecuted, and Mr E. J. Anderson appeared for the company.