Royal Society of Chemistry: Legal Note
FLOWERS OF SULPHUR.
REX v. ROBINSON BROTHERS LTD.
On December 16, 1925, a Birmingham firm was summoned at Croydon Police Court, at the instance of the London Chamber of Commerce, for having sold goods to which a false trade description, “Flowers of Sulphur,” had been applied, contrary to the Merchandise Marks Act, 1887.
Mr. H. D. Roome, for the prosecution, stated that growers of hops were willing to pay a higher price for flowers of sulphur, produced by sublimation, than for ground sulphur. In May, when the transaction took place, the difference in price between the two kinds of sulphur was about £6 per ton. An official of the London Chamber of Commerce had ordered 2 cwt. of “Fortress brand flowers of sulphur,” as advertised by the defendants in a Herefordshire paper. Microscopical examination and solubility tests indicated that the substance supplied consisted entirely of ground sulphur.
Chemical evidence was given that the sulphur was over 99 per cent. in purity, contained no arsenic or selenium, and that the whole of it would pass through an 80-mesh sieve, but that it was not flowers of sulphur.
Evidence was also given for the prosecution by the director of a firm of chemical manufacturers who made both kinds of sulphur. In the hop market ground sulphur was sold to hop growers and others as flowers of sulphur, but witness had always protested against the practice.
Mr. Willis, for the defence, urged that there was no case for a jury. The definition of flowers of sulphur in the British Pharmaceutical Codex included both ground and sublimed sulphur.
The Bench held that there was a prima facie case for trial by indictment, and bound the defendants over to appear at the next Surrey Quarter Sessions.
On March 3, the case was tried at the Guildford Assizes, before Mr. Justice Horridge and a jury, Sir Travers Humphreys leading for the prosecution, and Sir Arthur Colefax for the defence.
Mr. W. R. Smith said that he had analysed the sample, and had found it to consist of crystalline particles, and to contain no amorphous globules. It was almost completely soluble in carbon disulphide, not more than 1 per cent. remaining undissolved. In his opinion, flowers of sulphur should consist largely of opaque amorphous globules, and from 12 to 30 per cent. of it should be insoluble in carbon disulphide. The sample contained no acid, whereas the British Pharmacopoeia fixed a limit for the amount of acid that should be present. He regarded the. term “flowers of sulphur” as synonymous with sublimed sulphur. He did not agree, with the statement in the Pharmaceutical Codex that flowers of sulphur
might also be obtained by grinding sulphur.
Prof. H. G. Greenish, joint editor of the British Pharmacopoeia, said that the statement in the Pharmaceutical Codex that “sublimed sulphur is readily soluble in carbon disulphide” was not correct. In his opinion, flowers of sulphur could only be obtained by sublimation.
Trade evidence in support of the prosecution was given by Mr. H. T. Brandram Jones, director of Brandram Bros. & Co., makers of sulphur products, by representatives of chemical dealers, and by a hop grower.
Mr. D. Lloyd Howard said that, in his experience, the term “ flowers of sulphur” always meant sublimed sulphur. It was analogous to “flowers of camphor’’ and “flowers of benzoin,” also obtained solely by sublimation.
The evidence for the defence included other representatives of firms manufacturing sulphur products, chemical manufacturers and dealers, and hop growers. It was to the effect that the trade description, “flowers of sulphur,” had for many years been applied to sulphur other than that obtained by sublimation.
Prof. E. S. Salmon, Advisory Officer to the Ministry of Agriculture (present on subpoena), said that, for the purpose of use by the hop grower, pure sulphur in any fine form would have the same effect, however obtained. Sublimation was not the important thing, but purity and fineness.
Mr. Calder, Managing Director of Messrs. Chance & Hunt (manufacturers of the product in dispute), stated that the process of manufacture was to carry the sulphur in the form of a very fine dust into a collecting apparatus, by means of a current of an inert gas, after which the deposit was again passed through a sieve. He could not see anything wrong in applying the expression “flowers of sulphur” as a trade description of this product. He agreed with the statement in the Pharmaceutical Codex that flowers of sulphur could be made either by sublimation or by grinding.
Mr. W. J. U. Woolcock, President of the Society of Chemical Industry, said that he was one of those responsible for the preparation of the British Pharmaceutical Codex. Since 1903 onwards this reference to the manufacture of flowers of sulphur by a grinding process had been continued. In his opinion, the term was properly applicable to a product not obtained by sublimation.
Dr. J. A. Voelcker said that if he were asked to report whether a sample had been properly described as “flowers of sulphur,” he would first ask whether it had been sold for medicinal purposes or for agricultural and horticultural purposes. If it had been sold for medicinal purposes he would hold that it was necessary for it to comply with the definitions laid down in the British Pharmacopoeia, but for agricultural and horticultural purposes he would consider that in the term “flowers of sulphur” the word “flowers” had application primarily to the condition of the material. The nature of it and the form in which it occurred and the way in which it had been prepared would be quite immaterial to him, so long as it did its work. From the standpoint of purity and fineness he would not hesitate to call the sample “flowers of sulphur,” and from the standpoint of the hop grower, he considered it in every way a satisfactory material.
Dr. Bernard Dyer said that the sample was exceedingly pure (99-9 per cent.) and exceedingly fine (passing through a 150-mesh sieve). In his opinion, such a product was quite properly described as “ flowers of sulphur. ”
The Judge, in his summing up, pointed out that no question of fraud was involved in the issue; under the Merchandise Marks Act, 1887, the motives of the person who applied a false trade description were immaterial. To come within the Act a description must not only be false, but must also be a false trade description. People in the trade would naturally know what a trade description was. It seemed to him a large order to say that a description was false when so many witnesses for the defendants, composing a great variety of different members of the trade, had said that it was a true and not a false description.
The jury found the defendants guilty, and the judge imposed a fine of £50 and costs. Notice of appeal was given.
Shortly after the hearing of this case, the London Chamber of Commerce issued the following explanatory notice :-
FLOWERS OF SULPHUR.
In order to avoid misconception, the London Chamber of Commerce has issued the following
statement regarding the recent prosecution under the Merchandise Marks Act, 1887 relative
to the trade use of the description “Flowers of Sulphur”.
At the outset unquestionably the term was applied to sublimed sulphur.
Some years ago it was found possible to produce, by other processes, a sulphur composed of
particles of a purity and fineness equal to sublimed sulphur. The new product, for this reason,
was sold by some manufacturers and merchants as “Flowers of Sulphur”.
Whether the expression “Flowers” implied the product of sublimation or highly refined
’sulphur of a similar fineness of particle became a question, there being considerable difference of opinion in the trade.
So far as the largest market for finely divided sulphur, the rubber industry, was concerned,
the point was of no importance. But in the hopfields sublimed sulphur had been in general use as the specific against the disease known as hop “mould.”
In these circumstances, the London Chamber of Commerce was urged to take legal action in
order that the precise meaning of the trade term “ Flowers of Sulphur ” might be finally settled by the Courts.
The jury found that “Flowers” could only be applied to sublimed sulphur.
The Chamber is anxious to make it clear that this result does not imply any reflection upon
those manufacturers and merchants who have been in the habit, for years, of applying the word “Flowers” to a sulphur which was not, in fact, sublimed. It desires, therefore, to state categorically that, whilst the trade was divided in opinion, all parties acted in perfect good faith, and the attitude of the Chamber in the matter having now been explained, the trade interests concerned have abandoned their intention to proceed with the appeal which had been lodged.
In the circumstances, the Chamber of Commerce is meeting the defence in the matter of costs.
Company Registered in England - Co. No. 5586398