United States v. 2 BAGS, ETC., Civ. No. 21092.

• Decision Date: 03 February 1944
• Docket Number: Civ. No. 21092.
• Citation: 54 F. Supp. 706
• Parties: UNITED STATES v. 2 BAGS, MORE OR LESS, EACH CONTAINING 110 POUNDS POPPY SEEDS.
• Court: U.S. District Court — Northern District of Ohio

54 F. Supp. 706

UNITED STATES v. 2 BAGS, MORE OR LESS, EACH CONTAINING 110 POUNDS POPPY SEEDS.

Civ. No. 21092.

District Court, N. D. Ohio, E. D.

February 3, 1944.

Don Miller, U. S. Atty., and F. B. Kavanagh, Asst. U. S. Atty., both of Cleveland, Ohio, for plaintiff.

George N. Levine, of Brooklyn, N. Y., and Marc J. Grossman, of Cleveland, Ohio, for defendant.

WILKIN, District Judge.

This is a civil action in which the plaintiff seeks judgment that certain bags of poppy seeds shipped by Arco Products Company in interstate commerce be seized and confiscated.¹ The gravamen of the complaint is that the seeds were adulterated within the meaning of Section 342(b) (3) and Section 342(b) (4) of Title 21 U.S. C.A. The defendant contends that there is no basis for the complaint in fact or law. In last analysis the issue turns upon a point of law.

The undisputed or established facts are that the defendant shipped to jobbers in other states white poppy seeds known as British India seeds which had been colored by charcoal pigment made from burned poppy seeds. A short time after this country's involvement in the present war Dutch Blue and Turkish poppy seeds went off the market. Those seeds have a natural blue or dark gray color and had been used extensively, almost exclusively, for decorative and flavoring purposes in the manufacture of bread, rolls, and other baked goods. When the only available poppy seed on the market was the British India white seed, the defendant devised a method of coloring it for "eye appeal". There was a marked difference between the price of Dutch Blue and Turkish seeds, on the one hand, and the British India seeds, on the other. The dark seeds sold for 65 to 90 cents a pound, while the white seeds sold for 10 to 11 cents a pound. The white seeds after being colored sold for 22½ cents a pound. The seeds were shipped in bags labeled "Produce of British India. Artificially colored with vegetable colors." In the bills sent to jobbers the goods shipped were referred to as "White poppy seed from British India. Artificially colored."

Counsel for plaintiff, at the beginning of the argument, in their brief, say:

"The question now arises on all of the testimony as to:

"I. Whether the article is adulterated within the meaning of Section 342(b) (3), Title 21, U.S.C.A., in that inferiority has been concealed by addition of substance, charcoal.

"II. Whether the article is adulterated within the meaning of section 342(b) (4), Title 21 U.S.C.A., in that substance, charcoal, has been added thereto so as to make it appear better or of greater value than it is."

If those questions are answered with reference to retailers and consumers they would have to be answered in the affirmative. If, however, they are answered with reference to jobbers, the evidence convinces the court that they should have a negative answer. In spite of the fact that the British India seeds on close examination reveal a smaller size and a more uniformly black or very dark grey shade and that Dutch Blue and Turkish seeds are somewhat larger and contain variegated shades of color, still a cursory look at the seeds would reveal no difference. Any one inexperienced in such matters would fail to note the difference between the naturally dark seeds and the artificially colored seeds. While the difference in flavor, if any, is slight and there is no difference in food value, there is nevertheless a difference in commercial value or price, and the coloring of the white seeds does conceal that price inferiority and does make the white seeds appear better or of greater value than they are. The court is satisfied from the evidence that jobbers are well aware of the distinctions and would not be deceived by the artificial coloring, especially when they are sold under a label informing the purchaser that they are the product of British India, artificially colored. The difference in price would also be a well understood notice to jobbers that the seeds sold were not Dutch Blue or Turkish.

In view of these facts the legal issue arises whether the questions are to be answered with reference to the retailer and consumer or whether merely as to the consignee in the interstate sale. In view of the holding in a long line of decisions, the legality of the product must be tested by its condition at...