370 F.Supp. 371 (E.D.Mich. 1974), Civ. A. 4-70201, United States v. Articles of Food Consisting of Pottery Labeled Cathy Rose

• Citation: 370 F.Supp. 371
• Docket Number: Civ. A. 4-70201
• Date: 17 January 1974
• Parties: United States v. Articles of Food Consisting of Pottery Labeled Cathy Rose
• Court: 6th Circuit

Page 371

370 F.Supp. 371 (E.D.Mich. 1974)

UNITED STATES of America, Plaintiff,

v.

ARTICLES OF FOOD CONSISTING of 668 cases, more or less, each case containing one 20-piece set OF POTTERY, and 466 cases, more or less, each case containing one 45-piece set of pottery, and 187 display sets, more or less, LABELED in part: "Contemporary Ironstone *** FDA Approved CATHY ROSE No. Line 20 by Clemens China Co., Defendant.

Civ. A. No. 4-70201.

United States District Court, D. Michigan

Jan. 17, 1974

Page 372

Robert Sharp, U.S. Atty., Detroit, Mich., for plaintiff.

Frank W. Donovan, Detroit, Mich., for defendant.

MEMORANDUM OPINION

FEIKENS, District Judge.

The United States has filed a Complaint for Forfeiture against: (a) 668 cases, each containing one 20-piece set, of Cathy Rose pattern pottery, (b) 466 cases, each containing one 45-piece set, of Cathy Rose pattern pottery, and (c) 187 display sets of Cathy Rose pattern pottery. These goods were seized by the government during the last week of August, 1973 and are presently stored in a warehouse belonging to claimant located at 261 Church Street, Mount Clemens, Michigan. Claimant is Mount Clemens China Company, a Michigan corporation having its principal place of business in Mount Clemens; it has intervened in this proceeding as owner of the goods described. It moves for summary judgment and dismissal.

The Complaint for Forfeiture alleges that the articles proceeded against are adulterated within the meaning of 21 U.S.C. § 342(a)(2)(C) ¹ in that they contain a food additive, lead, which is unsafe within the meaning of 21 U.S.C. § 348(a). ² The government contends

Page 373

that these goods and their intended use are not exempt under any applicable law or regulation.

Other contentions raised by the government are not necessary to decision.

The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(f), states:

"The term 'food' means (1) articles used for food or drink for man or other animals ... and (3) articles used for components of any such article."

Of interest also is the definition of "food additive" appearing in 21 U.S.C. § 321(s):

"The term 'food additive' means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in ... holding food ...)."

It appears that food additives are subject to regulation as foods. See 21 U.S.C. § 342(a)(2)(C).

In its Complaint for Forfeiture the government alleges that more than 1,000 sets of pottery dinnerware, each...