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, and 42-9901, are included in the annotations for this Code section.

Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), did not change or repeal the common-law rule as stated in former Code 1933, § 105-1101 (see now O.C.G.A. § 51-1-23). Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109(7) and 42-9901).

Immunity for inspectors.

- Inspectors for the consumer protection division who informed a public warehouseman that the pecans stored at its warehouse were unfit for human consumption without destroying the condemned pecans expeditiously nor notifying the holders of a security interest in the pecans of the condemnation owed no duty to the holders of the security interest under the Georgia Food Act, O.C.G.A. § 26-2-20. The injury that the holders suffered in losing their security was not the type of injury the Georgia Food Act was designed to prevent. Planters & Citizens Bank v. Pennsylvania Millers Mut. Ins. Co., 786 F. Supp. 991 (S.D. Ga. 1992), aff'd, 992 F.2d 328 (11th Cir. 1993).

Cited in Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498, 504 S.E.2d 551 (1998).

No liability if 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 a part of the product itself, but when 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).

Products made wholly from vegetable oils, water, salt, and harmless coloring matter are not prohibited from being sold by former Code 1910, § 2115 (see now O.C.G.A. § 26-2-22). 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).

Product sometimes used as butter substitute.

- Product cannot be banned merely because it is sometimes used as a substitute for creamery butter without being declared to be such. 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).

If it is not so misbranded as to deceive or so adulterated as to injure.

- 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).

Indictment sufficient.

- Indictment charging that the defendant unlawfully sold "adulterated food," in that the 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 a 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 (1917) (decided under former Code 1910, § 2102).

Plaintiff must show knowledge or negligence by food retailer.

- In a suit for damages against a seller of unwholesome food which injures the plaintiff, it is still necessary to prove that the defendant either knew of the unwholesome condition of the food or was guilty of negligence in the transaction. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

Plaintiff need only show negligence as matter of law, and not of fact.

- When before passage of the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), an action for damages resulting from negligence could be sustained only by proof of such negligence as a matter of fact, according to the standard of ordinary prudence as applied to the circumstances, now the plaintiff may show negligence as a matter of law by establishing a breach of the statutory duty, or a plaintiff may rely on both classes of negligence, according to the facts; in other words, the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), did not affect the nature or basis of the cause of action, but related only to the standard of care by which negligence could be determined. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948) (decided under former Code 1933, § 2-109).

Plaintiff can invoke section to show negligence as matter of law.

- While the Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), was designed to protect the public, and did not expressly set forth duties to individual consumers, the plaintiff as a member of the public could invoke its provisions to show negligence as a matter of law, if injured by the violation of a duty imposed by the law. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

By showing breach of statutory duty.

- Plaintiffs, charging the defendant with a breach of legal duty in manufacturing and selling pie which they contended was unwholesome and putrid, so that they were injured and damaged by eating the food, since the enactment of the former Pure-Food and Drug Act of 1906, former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), could show negligence as a matter of law by establishing a breach of the statutory duty. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948) (decided under former Code 1933, §§ 42-109 and 42-9901).

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

- Sale of an adulterated article to a customer who is made ill by its consumption, in violation of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), 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).

Such as when retailer liable for not having manufacturer's guarantee of wholesomeness.

- Retail dealer who sold adulterated food, the sale of which was prohibited by the former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), who had not established a guaranty from the manufacturer as provided in former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24), that the article was not adulterated within the meaning of former Code 1933, § 42-109 (see now O.C.G.A. § 26-2-26), although the dealer had no knowledge of the unfit condition of the article sold and was not negligent with respect thereto, would be liable in damages to the person made sick from eating such food without fault on the plaintiff's part. 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).

Ordinary care is no defense, in that violation of section constitutes negligence per se.

- On the trial of 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 made penal under former Code 1933, §§ 42-109 and 42-9901 (see now O.C.G.A. § 26-2-26), which was negligence per se, since the evidence authorized an inference that the food was unfit, decomposed, or putrid and was therefore unfit for human consumption and adulterated as defined in the title, 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 connection with 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).

Plaintiff can establish negligence per se as matter of law, and/or negligence as matter of fact.

- 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 (see now O.C.G.A. § 26-2-26), 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).

When dealer with manufacturer's guarantee of wholesomeness still liable for negligence as matter of fact, if not per se.

- Under former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24), a dealer selling food adulterated within the meaning of that statute would not violate the statute's provisions, and therefore would not be guilty of negligence per se, if the dealer had obtained a guaranty of wholesomeness from the manufacturer but the guaranty would not relieve the dealer from the liability referred to in former Code 1933, § 105-1101 (see now O.C.G.A. § 51-1-23), if the dealer is negligent as a matter of fact in selling unwholesome food which injures another. It follows that former Code 1933, § 42-115 (see now O.C.G.A. § 26-2-24), merely creates an exception to the statute in favor of those who obtain the guaranty. Burns v. Colonial Stores, Inc., 90 Ga. App. 492, 83 S.E.2d 259 (1954) (decided under former Code 1933, §§ 42-109 and 42-115).

ALR.

- 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.

Validity, construction, and application of statutes or ordinances directed against false or fraudulent statements in advertisements, 89 A.L.R. 1004.

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.

Validity, construction, and application of statutes or ordinances relating to inspection of food sold at retail, 127 A.L.R. 322.

Knowledge or actual negligence on part of seller which is not an element of criminal offense under penal statute relating to sale of unfit food or other commodity, as condition of civil action in tort in which violation of the statute is relied upon as negligence per se or evidence of negligence, 128 A.L.R. 464.

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.

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

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.

Validity and construction of regulations dealing with misrepresentation in the sale of Kosher food, 52 A.L.R.3d 959.

Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

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.