United States v. TWO BAGS, ETC., 9852.

Citation147 F.2d 123
Decision Date31 January 1945
Docket NumberNo. 9852.,9852.
PartiesUNITED STATES v. TWO BAGS, EACH CONTAINING 110 POUNDS, POPPY SEEDS, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Fred H. Mandel, of Cleveland, Ohio (Tom C. Clark, of Washington, D. C., Don C. Miller and Fred H. Mandel, both of Cleveland, Ohio, James B. Goding, Atty., Federal Security Agency, of Boston, Mass., and Vincent A. Kleinfeld, of Washington, D. C., on the brief), for appellant.

George X. Levine, of New York City, for appellee.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The District Court dismissed a complaint filed as a libel in rem on information by the United States Attorney for the Northern District of Ohio for the seizure and condemnation of two bags, more or less, each containing 110 pounds of poppy seeds, shipped in interstate commerce from Brooklyn, New York, to Cleveland, Ohio; and ordered the seized goods returned to the owner. The libel was grounded upon averments that the poppy seeds were adulterated within the meaning of Section 402(b) (3) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(b) (3), which provides: "A food shall be deemed to be adulterated — * * * (3) if damage or inferiority has been concealed in any manner;" and of Section 402(b) (4) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(b) (4), which provides: "A food shall be deemed to be adulterated — * * * (4) if 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."

Upon the evidence in the case, the district court found that the owner and claimant of the seized merchandise, the Arco Products Company of Brooklyn, New York, had shipped the poppy seeds in interstate commerce to jobbers, and not to ultimate consumers; that the poppy seeds were intended to be used as food and components of food for human consumption; and prior to shipment had been colored by charcoal pigment made from burnt poppy seeds. It was found further that these poppy seeds, products of British India, were naturally of a whitish color and, when uncolored, had a market value ranging from ten to eleven cents a pound; but, when artificially colored, they had a market value of about twenty-two-and-a-half cents a pound. There was a marked difference in the market value of these British India poppy seeds, on the one hand, and Dutch blue and Turkish grey poppy seeds, on the other. The latter were much more expensive. The coloring of the Dutch and Turkish seeds was natural and they were somewhat larger than the British India, white poppy seeds.

The Dutch and Turkish seeds have been used extensively — indeed, almost exclusively — for decorative and flavoring purposes in the manufacture of bread, rolls and other baked goods. After the United States became involved in World War II, the Dutch blue and Turkish grey poppy seeds were hardly procurable at all, making the British India product the only available poppy seeds on the market.

The Arco Products Company devised a method of coloring British India white poppy seeds with charcoal pigment, made from burnt poppy seeds; so that, as found by the district court, the "British India white poppy seeds resembled in color and shape the genuine Dutch blue and Turkish grey poppy seeds, except that the artificially colored seeds were of a size smaller, and had a more uniformly black or dark grey shade than the genuine Dutch blue and Turkish grey poppy seeds respectively."

The court found further that there is little, if any, difference in flavor, and no difference in food value of the naturally and the artificially colored seeds; and that a person inexperienced in such matters would fail to notice the difference between the Dutch blue or Turkish grey poppy seeds and the artificially colored British India white poppy seeds. It was found that the purpose of the Arco Products Company in the coloration was to impart "eye appeal" to the white poppy seeds which were shipped by it in interstate commerce, to jobbers only, in bags labeled: "Produce of British India. Artificially colored with vegetable colors."

Pointing out that jobbers in the trade were well aware of the difference between the poppy seeds, whether in their natural state or artificially colored, and could not have been deceived by the artificial coloring, particularly where the seeds were shipped in bags with informative labels, the district court concluded its findings of fact with this important finding:

"The addition of charcoal pigment made from burnt poppy seeds to the British India white poppy seeds tended to conceal the price inferiority of said poppy seeds in the hands of the ultimate consumers, but not the jobbers, and tended to make them appear better and of greater value than they were in that the inferiority thereof had been concealed by addition of substance, charcoal, and that the substance, charcoal, had been added thereto so as to make it appear better or of greater value than it was."

This last finding, as was each of the other findings of the court, was supported by substantial evidence.

In a memorandum opinion, 54 F.Supp. 706, 707, the district judge stated that, on all the testimony, the questions presented were whether the article is adulterated within the meaning of Section 342(b) (3), Title 21 U.S.C.A., in that inferiority has been concealed by addition of charcoal; and whether the article is adulterated within the meaning of Section 342(b) (4), 21 U. S.C.A., in that charcoal has been added thereto so as to make the article appear better or of greater value than it is. He thus answered the questions which he put: "If those questions are answered with reference to retailers and consumers they would have to be answered in the affirmative. If, however, they are answered with reference to jobbers, the evidence convinces the court that they should have a negative answer. In spite of the fact that the British India seeds on close examination reveal a smaller size and a more uniformly black or very dark grey shade and that Dutch blue and Turkish seeds are somewhat larger and contain variegated shades of color, still a cursory look at the seeds would reveal no difference. Anyone inexperienced in such matters would fail to note the difference between the naturally dark seeds and the artificially colored seeds. While the difference in flavor, if any, is slight and there is no difference in food value, there is nevertheless a difference in commercial value or price, and the coloring of the white seeds does conceal that price inferiority and does make the white seeds appear better or of greater value than they are."

Inasmuch as jobbers, who were the consignees, were well aware of the distinctions between the seeds, the district court reasoned that "the legality of the product must be tested by its condition at the time of seizure and not by what its condition might be after it has passed beyond interstate commerce channels or been transposed from the packages in which it was shipped or changed in form or content"; that "if the public is to be protected against the sale of colored poppy seeds unlabeled or improperly labeled it will require state law and state administration"; that "if the interstate shipment is not a `palming off' of something inferior it is not in violation of the statute merely because it has a potentiality of deception"; and that it having been found that the seeds involved in the case were labeled and billed for what they actually were, the court should not treat them as contraband "merely because of the possibility that they might be used subsequently to deceive."

We are unable to agree with the reasoning of the district court; and think that, the article having been found to be adulterated within the meaning of Sections 342(b) (3) and 342(b) (4), insofar as consumers are concerned, the seized seeds should have been condemned under the Federal Food, Drug and Cosmetic Act. To set up deception of jobbers as the criterion for the determination of the issue of condemnation was, in our judgment, clearly erroneous. The express language of the pertinent provisions of the Act of Congress is reasonably susceptible of no such narrow interpretation. The district court found as a fact that the inferiority of the food had been concealed; that an added substance had made it appear better or of greater value than it is insofar as the ultimate consumer was affected; and that an inexperienced person would fail to detect the difference between the natural Dutch blue or Turkish grey poppy seeds and the artificially colored British India white seeds, shipped in interstate commerce by the Arco Products Company.

In construing the original Pure Food and Drugs Act of 1906, 21 U.S.C.A. § 1 et seq., the Supreme Court pointed out that the statute rests upon the power of Congress to regulate interstate commerce; that no trade can be carried on between the states to which this power does not extend; that it is complete in itself, subject to no limitations except those found in the Federal Constitution; and that it must be remembered that the Act deals with illicit articles, which the law seeks to keep out of commerce and to punish, along with the shipper of them, because the articles are debased by adulteration. Hipolite Egg Co. v. United States, 220 U.S. 45, 57, 31 S.Ct. 364, 55 L.Ed. 364.

In Carolene Products Company v. United States of America, 65 S.Ct. 1, 8, decided November 6, 1944, the Supreme Court said: "When Congress exercises a delegated power such as that over interstate commerce, the methods which it employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat."

The right both of a state and of Congress to go beyond the protection of the public by prohibition of false...

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