United States v. 133 Cases of Tomato Paste, 192.
| Decision Date | 03 March 1938 |
| Docket Number | No. 192.,192. |
| Citation | 22 F. Supp. 515 |
| Parties | UNITED STATES v. 133 CASES OF TOMATO PASTE. |
| Court | U.S. District Court — Western District of Pennsylvania |
Edward A. Kallick, Asst. U. S. Atty., of Philadelphia, Pa., and J. Cullen Ganey, U. S. Atty., of Bethlehem, Pa.
Adrian Bonnelly, of Philadelphia, Pa., for defendant.
The United States has filed its libel in this case seeking the confiscation and condemnation under the Food and Drugs Act, as amended, 21 U.S.C.A. § 1 et seq., of 133 cases, more or less, each containing 100 cans of tomato paste, shipped by Harbor City Food Corporation from California to Cacciola Bros. in Philadelphia for sale. From the evidence I make the following special findings of fact:
The tomato paste in question was manufactured in July, 1935, by the Harbor City Food Corporation at its plant in Harbor City, Cal. The paste was manufactured from tomatoes purchased by the corporation from farmers and delivered at its plant. Many of these tomatoes were infested with the corn ear worm. This worm, after hatching upon the tomato plant, crawls under the calyx of the developing fruit and burrows down into the core where it carries on its feeding operations and deposits its excreta.
Careful inspection of the individual tomatoes entering a plant is necessary in order to detect and reject tomatoes containing corn ear worms or their excreta. At the time of the manufacture of the tomato paste involved in this case a proper and adquate inspection of the tomatoes entering its plant was not maintained by the Harbor City Food Corporation. As a result, a large number of tomatoes containing corn ear worms and their excreta were used in the manufacture of the paste.
In the course of manufacture of the paste the tomatoes and the worms contained in them are broken up into very small fragments and pulped. In the finished product the worm fragments cannot be detected by the consumer either by sight or taste, nor do they render the tomato paste injurious to the consumer's health. In fact, they can normally be detected only by a microanalyst.
The microanalysis by government chemists of 33 samples of the tomato paste involved in this case indicated that it contained on the average about 85 fragments of the corn ear worm in each 200 cubic centimeters.
Discussion.
The confiscation and condemnation of this tomato paste is sought by the government under section 10 of the Food & Drugs Act, 21 U.S.C. § 14, 21 U.S.C.A. § 14, which provides that "any article of food * * * that is adulterated * * * and is being transported from one State * * * to another for sale, * * * shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation." Section 7 of the act, 21 U.S.C. § 8, 21 U.S.C.A. § 8, provides, inter alia, 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 * * * animal or vegetable substance." The uncontradicted testimony showed, as I have found, that this...
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...of live worms in tomatoes would offend "the aesthetic tastes and sensibilities of the consuming public." United States v. 133 Cases of Tomato Paste, 22 F.Supp. 515, 516 (E.D. Pa. 1938).27 The result of this case was subsequently altered by statute, Ill.Rev.Stat.Ann. Ch. 91, § 181 (Smith-Hur......
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