United States v. 1,200 CANS, PASTEURIZED WHOLE EGGS, ETC.

• Decision Date: 08 March 1972
• Docket Number: Civ. A. No. 14782-14784,14796 and 14821.
• Citation: 339 F. Supp. 131
• Parties: UNITED STATES of America v. An article of food consisting of: 1,200 CANS, article Labeled in part (can) "30 lbs. Net Weight, PASTEURIZED WHOLE EGGS, distributed by FRIGID FOOD PRODUCTS, INC.—DETROIT, MICH." (coded 1937) UNITED STATES of America v. Articles of food consisting of: 1,250 CANS, MORE OR LESS, Labeled in part "LOT NO. 1949" (STORED UNDER LOT NO. 2149), et al. UNITED STATES of America v. Approximately 26 CANS, article Labeled in part (can) "SUGAR YOLKS — Net Weight 30# Lot No. 2923 Packed by GOLDEN EGG PRODUCTS, INC., ONEONTA, ALABAMA, Ala. #14204" — Stored under Lot No. 2923, et al. UNITED STATES of America v. Articles of food consisting of: 1,250 CANS, MORE OR LESS, of an article Labeled in part: (can) "PASTEURIZED FROZEN WHOLE EGGS * * * Net Wt. 30 lbs. Lot No. 1002 Distributed by SUN CITY DAIRY PRODUCTS, INC., MIAMI, FLORIDA" or "Frozen Pasteurized Whole Eggs 30 lbs. Net Distributed by Sun City Dairy Products, Inc. * * * Hialeah, Florida", et al. UNITED STATES of America v. Articles of food consisting of: 514 CANS, MORE OR LESS, and 15 cans, more or less (both lots CODED "1976"), et al.
• Court: U.S. District Court — Northern District of Georgia

339 F. Supp. 131

UNITED STATES of America v. An article of food consisting of: 1,200 CANS, article Labeled in part (can) "30 lbs. Net Weight, PASTEURIZED WHOLE EGGS, distributed by FRIGID FOOD PRODUCTS, INC.—DETROIT, MICH." (coded 1937)

UNITED STATES of America v. Articles of food consisting of: 1,250 CANS, MORE OR LESS, Labeled in part "LOT NO. 1949" (STORED UNDER LOT NO. 2149), et al.

UNITED STATES of America v. Approximately 26 CANS, article Labeled in part (can) "SUGAR YOLKS — Net Weight 30# Lot No. 2923 Packed by GOLDEN EGG PRODUCTS, INC., ONEONTA, ALABAMA, Ala. #14204" — Stored under Lot No. 2923, et al.

UNITED STATES of America v. Articles of food consisting of: 1,250 CANS, MORE OR LESS, of an article Labeled in part: (can) "PASTEURIZED FROZEN WHOLE EGGS * * * Net Wt. 30 lbs. Lot No. 1002 Distributed by SUN CITY DAIRY PRODUCTS, INC., MIAMI, FLORIDA"

or

"Frozen Pasteurized Whole Eggs 30 lbs. Net Distributed by Sun City Dairy Products, Inc. * * * Hialeah, Florida", et al.

UNITED STATES of America

v.

Articles of food consisting of: 514 CANS, MORE OR LESS, and 15 cans, more or less (both lots CODED "1976"), et al.

Civ. A. Nos. 14782-14784, 14796 and 14821.

United States District Court, N. D. Georgia, Atlanta Division.

March 8, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ralph B. Guy, Jr., Richard L. Delonis, Detroit, Mich., John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Lewis R. Baron, Robert M. Newton, Chicago, Ill., Miles J. Alexander, George B. Haley, Jr., Atlanta, Ga., for defendants.

SIDNEY O. SMITH, Jr., Chief Judge.

These five actions were brought in different parts of the United States pursuant to Section 304 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 334) to condemn and destroy as adulterated various lots of pasteurized frozen whole eggs and sugar yolks processed and introduced into interstate commerce by the Golden Egg Products, Inc. of Oneonta, Alabama ("Golden Egg"). Proceeding under the statute, the government contends that the lots were "adulterated" in one or more of the definitions prescribed by Congress in 21 U.S.C. § 342, which provides in part:

"A food shall be deemed to be adulterated —

(a) (1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; ...

* * * * * *

(3) If it consists in whole or in part of any filthy, putrid, or decomposed substance, or ...

(4) If it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; ..."

In each instance, the purchaser from Golden Egg, Bender Goodman, Inc., has filed appropriate claims denying that the eggs are adulterated and seeking an order returning the property to them for sale in commerce. The actions were all transferred to this district and consolidated for trial before the court. On the basis of the facts and law, the court makes the following findings:¹

BACKGROUND.

Golden Egg is a so-called frozen egg breaking plant, the purpose of which is to remove eggs from their shells, process the egg magma, and package and freeze it in a variety of combinations for sale to manufacturers. Its principal use is in the baking, dairy products and vegetable oil industries. Almost all is used for food or as components of other foods and is therefore subject to regulation in interstate commerce under the Act. 21 U.S.C. § 321(f). United States v. O. F. Bayer & Co., 188 F.2d 555 (2d Cir. 1951); Otis McAllister & Co. v. United States, 194 F.2d 386 (5th Cir. 1952).

Of comparative recent development are mechanical egg-breaking plants, but more typical of the industry in the past, and present here, is a hand breaking operation. In the ideal process, wholesome clean cool eggs are broken by workers in antiseptic conditions, collected in buckets, strained, pasteurized, and sealed in sterile containers, quick-frozen and stored at low temperatures until used. Customary in the trade are 35 gallon cans, sold in lots. Because of economic considerations, most plants must resort to the purchase of eggs of less than Grade A standard table eggs, which come in a variety of forms, grades and prices.² In many instances, they have neither been inspected, cleaned or classified in any way, but are acquired in their natural state as "farm runs" in packing cases, or egg pullmans, furnished by the seller. Whatever their state, it is important that they be held at moderate temperatures not in excess of 40° or 45° to prevent the growth of harmful organisms prior to processing and carefully segregated and cleaned prior to use.

In a significant forward step, all such egg and dairy products have been required to be pasteurized since 1966 and this has greatly reduced the possibility of toxic ingredients reaching the consumer. 21 CFR 42.10 ff. However, because of the nature and source of the egg stock commonly used, it is most important that all steps in the process be conducted with care so as to avoid the possibility of harmful adulteration. The major functions in an egg-breaking plant may be broken down to: inspection, rejection, and cleaning; breaking; pasteurization; and packaging. These are normally performed in separate rooms or locations known as the transfer room, breaking room, pasteurization room, and filling room. The nature of the product and each function — particularly the first two — affords ample opportunity for the contamination prohibited by law.

By way of enforcement, Food and Drug inspectors have ministered the Act under the investigative powers afforded in 21 U.S.C. §§ 372 and 374. This has resulted in spot-checking of plants at one end and of shipped production at the other end. Effective June 29, 1972, enforcement will be transferred to the Department of Agriculture with a continuous in-plant inspection service similar to that previously employed in the meat and poultry dressing plants. 21 U.S.C. § 1031 ff. Undoubtedly, the latter will form a more efficient supervision albeit at increased public cost. Nonetheless, at present, condemnation is judged on the basis of evidence sporadically, though systematically, gathered by periodic inspection and testing. A difficulty lies in the obvious — namely, that the present method only gives a partial insight into a particular plant's total production in terms of time and quantity, while the new method should afford total coverage.

While the Federal Food, Drug, and Cosmetic Act contains criminal sanctions, the authorities are in general agreement that it should be liberally construed so as to protect the public health. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Kordel, 146 F.2d 913 (7th Cir. 1947), aff'd 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948), reh. den. 335 U.S. 900, 69 S.Ct. 298, 93 L.Ed. 435 (1948), reh. den. 336 U.S. 911, 69 S.Ct. 513, 93 L.Ed. 1075 (1949). E. g. United States v. Bodine Produce Co., 206 F. Supp. 201 (D.Ariz.1962). To that end it has early and consistently been held that no actual injury to the public health need be shown or even that it "must" necessarily result, but only that it "may possibly injure the health" of a consumer. United States v. Lexington Mill and Elevator Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658 (1914). Accordingly, when a statute is worded in the subjunctive, the test is whether the result is reasonably possible; when the statute is worded in the absolute, then the test is one of certainty.

I. Poisonous substances under 21 U.S.C. § 342(a) (1).

"A food shall be deemed to be adulterated —if it bears or contains any poisonous or deleterious substance which may render it injurious to health."

Only one lot involved here (Can Code 1941) is claimed to be adulterated under this section. It was part of a seizure in Boston in August, 1970, and was produced by Golden Egg on July 1 and July 2. Twenty drillings were taken of this lot, packaged, and packed in dry ice for transportation to government laboratories. In the course of the microbiological examination conducted in accordance with testing standards of the Association of Official Agricultural Chemists (AOAC), in Boston, one subsample was found to have Salmonella contamination. It was forwarded to Washington for confirmation as to species. On or about August 31st, the government Salmonella expert completed the cultures and isolated the bacteria as Salmonella Worthington.

Salmonella itself is a well-recognized pathogen. There are some 1400 types, all felt by medical scientists to be deleterious. As such, Salmonella constitutes a serious threat to public health, particularly to the old, the young, and the sickly. Salmonella Worthington is particularly found in fowl and can be cultured from a carcass or from the feces of an infected chicken. An infected chicken generally contaminates an egg with this Salmonella on the outside only. However, one of the greatest benefits of the pasteurization process is that it normally destroys all Salmonella getting into the product, but improper processing or recontamination is possible.

The presence of Salmonella in frozen eggs is a deleterious and poisonous additive which is dangerous to health within the meaning of 21 U.S.C. § 342(a) (1). Such fact is stipulated here. See United States v. Scars of Louisiana, Inc., 324 F.Supp. 307 (E.D.La.1971). Accordingly, Lot 1941 is subject to condemnation under this section.³

II. Decomposed Substances under 21 U.S.C. § 342(a) (3).

"A food shall be deemed to be adulterated —if it consists in whole or in part of any filthy, putrid, or decomposed substance."

At the outset, it should be noted that this particular section is worded in the absolute. Thus, the question presented is not whether a particular lot "may" be filthy, putrid, or decomposed, but whether it actually is. Nonetheless, in arriving at a proper standard, the courts readily agree that...