Knapp v. Callaway
| Decision Date | 05 August 1931 |
| Citation | 52 F.2d 476 |
| Parties | KNAPP et al. v. CALLAWAY, Chief of New New York Station of Department of Agriculture, et al. |
| Court | U.S. District Court — Southern District of New York |
Blackwell Bros., of New York City (James Madison Blackwell, and E. B. Bellinger, both of New York City, of counsel), for plaintiffs.
George Z. Medalie, U. S. Atty., of New York City (Maurice De Koven, Asst. U. S. Atty., of New York City, and James B. Horigan, Asst. Sol., Department of Agriculture, of Washington, D. C., of counsel), for defendants.
This is a suit to enjoin officers of the Department of Agriculture from detaining certain shipments of dried egg yolk belonging to the plaintiffs and from basing the standard of dried egg yolk, for purposes of admissibility into the United States, upon the department's fatty acid test.
Section 2 of the Food and Drugs Act (21 USCA § 2) prohibits the importation of any article of food which is adulterated, and section 7 (21 USCA § 8) provides that an article shall be deemed to be adulterated in the case of food if it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance.
Section 3 (21 USCA § 3) provides that the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce shall make uniform rules and regulations for carrying out these provisions.
Pursuant to this authority a rule was adopted (Regulation 4b of the Regulations for the Enforcement of the Federal Food and Drugs Act) providing that all foods shall be analyzed by the methods prescribed by the Association of Official Agricultural Chemists, when applicable, provided, however, that any method of analysis or examination satisfactory to the Food and Drug Administration may be employed.
It is contended by the plaintiffs that the new test which was recently put into effect in place of the organoleptic tests — appearance, taste, texture, solubility, viscosity and odor — theretofore used by the Department of Agriculture and still used by the trade to determine the merchantable quality and fitness of dried egg yolk for human consumption, is unfair and enforces an unauthorized standard which is arbitrary and capricious, citing Waite v. Macy, 246 U. S. 606, 38 S. Ct. 395, 62 L. Ed. 892; Lynch v. Tilden Produce Co., 265 U. S. 315, 44 S. Ct. 488, 68 L. Ed. 1034; Ambruster v. Mellon, 59 App. D. C. 341, 41 F.(2d) 430.
The plaintiffs urge that the decomposition detected by the Department's test is chemical decomposition of the fat into its component parts and not the bacterial decomposition resulting in staleness or rottenness intended by the statute, citing A. O. Andersen & Co. v. United States (C. C. A.) 284 F. 542.
The plaintiffs concede that the test is a fair and scientific test to determine the percentage of fatty acid contained in dried egg yolk.
They assert that whether or not such yolk consists in whole or in part of a filthy, decomposed, or putrid animal substance, can be adequately determined, as it always has been, by the organoleptic test, and that the test of lipolytic decomposition adopted by the government does not show whether such egg yolk consists of decomposed animal substance, and that decomposed dried egg yolk often shows a lower percentage of fatty acid than the standard fixed by the department.
The test required by the statute is not whether the food is unwholesome or injurious to health. See United States v. Two Hundred Cases of Adulterated Tomato Catsup (D. C.) 211 F. 780, 783; A. O. Andersen & Co. v. United States (C. C. A.) 284 F. 542.
That such a test has never been used or heard of before is immaterial. See United States v. One Hundred Barrels of Vinegar (D....
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