588 F.2d 39 (4th Cir. 1978), 78-1066, United States v. Articles of Hazardous Substance

Docket Nº:78-1066, 78-1110 and 78-1142.
Citation:588 F.2d 39
Party Name:UNITED STATES of America, Appellant, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery Co., Inc., Appellees. UNITED STATES of America, Appellee, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery Co., Inc., Appellants. In re UNITED STATES of America, Petitioner.
Case Date:October 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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588 F.2d 39 (4th Cir. 1978)

UNITED STATES of America, Appellant,

v.

ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery

Co., Inc., Appellees.

UNITED STATES of America, Appellee,

v.

ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery

Co., Inc., Appellants.

In re UNITED STATES of America, Petitioner.

Nos. 78-1066, 78-1110 and 78-1142.

United States Court of Appeals, Fourth Circuit

October 30, 1978

Argued March 6, 1978.

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[Copyrighted Material Omitted]

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Robert B. Nicholson, Atty., Dept. of Justice, Washington, D. C. (Andrea Limmer, Atty., Dept. of Justice, John H. Shenefield, Asst. Atty. Gen., Theodore J. Garrish, Gen. Counsel, Norman Barnett, Sol., Earl A. Gershenow, Atty., Consumer Product Safety Com'n, on brief), for U. S. in Nos. 78-1066 and 78-1110.

Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N. C., on brief), for Articles of Hazardous Substance, etc. in Nos. 78-1066 and 78-1110.

Richard H. Gimer, Richard G. White, Santarelli & Gimer, Washington, D. C., on brief, for amicus curiae American Yarn Spinners Ass'n, Inc.

Before WINTER, Circuit Judge; Field, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

On January 18, 1978, the United States, acting on behalf of the Consumer Products Safety Commission (CPSC) under the Federal Hazardous Substances Act (FHSA), as amended, 15 U.S.C. §§ 1261, Et seq., obtained an ex parte warrant of seizure and condemnation from the Clerk of the District Court for the Middle District of North Carolina, directing the seizure of quantities of several different types of children's sleepwear which had been treated with TRIS, a flame retardant, technically known as (2, 3 Dibromoprotyl) phosphate. The sleepwear was being offered for sale by Troxler Hosiery Company, Inc., at its place of business in Greensboro, North Carolina, and in its complaint the Government alleged that the sleepwear was a banned hazardous substance under 15 U.S.C. § 1261(q)(1)(A). As authority for the seizure the Government invoked 15 U.S.C. § 1265 which authorizes the seizure of a banned hazardous substance "while held for sale". Troxler filed a motion to quash the warrant of seizure which, after a hearing, was granted by the district court. The Government has appealed.

In its motion to quash, Troxler contended that CPSC could proceed against TRIS-treated goods only after adopting an appropriate regulation pursuant to 15 U.S.C. § 1261(q)(1)(B) and § 1261(q)(2), and that

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the seizure violated Troxler's constitutional rights under the Fourth and Fifth Amendments. The district court rejected Troxler's first contention, but upheld its constitutional challenges.

With respect to Troxler's first contention, we note, as did the district court, that under Section 1265 "banned hazardous substances" are liable to seizure by process pursuant to a libel of information, and that an article may be a "banned hazardous substance" under either Section 1261(q)(1)(A) or Section 1261(q)(1)(B). Section 1261(q)(1)(A), upon which the Commission relied in this case, defines a "banned hazardous substance" to be "any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted." A "hazardous substance" is defined in Section 1261(f)(1) in pertinent part as follows:

(A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial...

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