United States v. 2623 Pounds, More or Less, of Veal & Beef
| Decision Date | 28 April 1971 |
| Docket Number | No. 70 1703.,70 1703. |
| Citation | 336 F. Supp. 140 |
| Parties | UNITED STATES of America, Plaintiff, v. 2623 POUNDS, MORE OR LESS, OF VEAL AND BEEF, Defendant. |
| Court | U.S. District Court — Northern District of California |
COPYRIGHT MATERIAL OMITTED
James L. Browning Jr., U. S. Atty. and Brian B. Denton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.
George A. McKray, San Francisco, Cal., for defendant.
This action is brought pursuant to the provisions of Section 403 of the Federal Meat Inspection Act, 21 U.S.C. 673, and prays the seizure and condemnation of certain meat products located at the establishment of the Chip Steak Company (claimant herein) on the ground that such products are misbranded within the meaning of 21 U.S.C. 601(n) (1) and (n) (7) and on the further ground that such products are adulterated within the meaning of 21 U.S.C. 601(m) (8).
The action is presently before the court on cross-motions for summary judgment.
The record herein indicates that on March 17, 1960, an inspector for the United States Department of Agriculture took a sample of a meat product from claimant's establishment; that the sample was taken from containers marked "Tasty Beef Steaks; Beef-Chopped-Molded-Cubed-Frozen; Hydrolized Vegetable Protein and Flavoring Added"; that such sample was analyzed and found to contain in excess of 30 fat; and that, on March 27, 1970, the lot from which the sample had been taken was marked "U.S.-Retained".
The same procedure was followed on June 22, 1970, when federal inspectors took a sample from containers marked "Breaded Veal Steaks; Beef Added; Chopped-Molded-Cubed-Frozen; Hydrolized Vegetable Protein and Flavoring Added"; such sample was analyzed and found to contain in excess of 30% fat; and on July 1, 1970, the lot from which this sample had been taken was also marked "U.S.-Retained".
The same procedure was again followed on June 24, 1970, with a sample from containers marked "Buttered Beef Steaks; Chopped-Shaped-Cubed-Frozen; Monosodium Glutamate added"; this sample was also found to contain in excess of 30% fat and, on July 6, 1970, the lot from which the sample had been taken was marked "U.S.-Retained".
The federal agents informed supervisory personnel of Chip Steak Company that the products would be released if they were reworked so as to reduce the fat content below the 30% level, or if they were relabeled as "veal patties;" the Company refused to pursue either alternative.
On August 11, 1970, the instant complaint by the government was filed charging that the meat food products are misbranded within the meaning of 21 U.S.C. 601(n) (1)1 in that the labels are false and misleading because the description on the labels is the common and usual name of a food containing not more than 30% fat whereas the products sampled actually contained in excess of 30% fat; and that the product is misbranded within the meaning of 21 U.S.C. 601(n) (7)2 in that the labels purport to describe a hamburger product for which a definition and standard of identity or composition has been prescribed by the Secretary of Agriculture but that the product does not conform to said standard in that the beef contains in excess of 30% fat.3
The complaint further charges that such meat food products are adulterated within the meaning of 21 U.S.C. 601(m) (8)4 in that fat has been substituted in part for beef or has been added so as to increase the bulk or weight or reduce the quality or strength of the meat food product.
Section 403 of the Federal Meat Inspection Act, 21 U.S.C. 673, the provision under which the instant action was filed, provides, in part, that any meat food product which is capable of use as human food and is adulterated or misbranded shall be liable to be proceeded against and seized and condemned, at any time, on a libel of information in any United States District Court within the jurisdiction of which the article is found; and that the proceedings should conform, as nearly as may be, to the proceedings in admiralty, except that any party may demand trial by jury of any issue of fact joined in any case.
Following the filing of the complaint herein the products were seized by the United States Marshal and are presently in his custody.
Claimant, by a cross-complaint for declaratory and injunctive relief and a motion for summary judgment, raises the following contentions as jurisdictional hurdles to be overcome prior to a consideration of the merits of the instant libel action: (1) that the 1967 Wholesome Meat Act, 21 U.S.C. 601 et seq., created a period of limitation requiring the filing of a libel action within twenty days of detention of any meat product; (2) that this action, in essence, presents a mislabeling question and should proceed under the provisions of 21 U.S.C. 607(e) which provides for judicial review by the Court of Appeals rather than by the district court; (3) that the meat food samples upon which the instant action is based were illegally seized in that no payment was made therefore.
Claimant raises the further contention that the fabricated steak products which are the subject of the instant action are readily distinguishable from hamburger and that, in the absence of a regulation covering fabricated steaks, there can be no adulteration or misbranding.
Recognizing that, subsequent to the filing of the instant action, the Secretary of Agriculture promulgated regulations dealing specifically with fabricated steak, claimant contends that such regulations are "ex post facto" regulations and, further, that such regulations were not properly promulgated.
Before discussing the various legal and factual issues raised in the pleadings and affidavits on file herein in support of the summary judgment motions, a brief outline of the Meat Inspection Act is in order.
The original Federal Meat Inspection Act, i. e., the Act of 1907, 21 U.S.C. 71 et seq., was recently amended by the Wholesome Meat Act of 1967, 21 U.S.C. 601 et seq. The 1967 Act incorporates the earlier legislation almost verbatim and adds, inter alia, "auxiliary" means of enforcement of the Act's provisions. 21 U.S.C. 671 et seq. See, legislative history, 2 U.S.Code Cong. & Adm.News 2188 (1967).
Under the earlier legislation, 21 U.S. C. 71 et seq., the Government was limited to inspecting and passing upon certain meat food products which were to be used in interstate commerce; condemnation powers, while summary in nature, were limited to meat or animals found to be "unsound, unhealthful, unwholesome, or otherwise unfit for food." 21 U.S.C. 72; 9 C.F.R. 310-315.
The Act of 1967 substitutes the term "adulterated" for the former language restricting federal intervention to products found unfit for food. An adulterated product not only includes one not fit to be eaten, "but also one to which almost anything has been added or extracted to make the product seem better than it actually is." United States v. 500 pounds, etc., Veal and Beef, 319 F. Supp. 966, 967 (N.D.Cal.1970); 21 U.S. C. 601(m) (8).
The summary condemnation and destruction procedures of the original Act, 21 U.S.C. 71-72 () are now contained in §§ 605-606; under these provisions summary condemnation is available whenever any carcass, part thereof, or meat food product is found by an inspector to be "adulterated."5
Under the earlier legislation the Federal Government enjoyed the "implied" power to "retain" products believed to be unfit for food indefinitely pending a decision on action to be taken. (See affidavit of L. L. Gast, Director of Compliance and Evaluation Staff, Consumer Protection Programs, Consumer and Marketing Service, United States Department of Agriculture). United States v. 500 Pounds, supra at 968.
The court in United States v. 500 Pounds, supra, found that Congress, in retaining and broadening the summary condemnation powers of the old Act, indicated no intention that the heretofore existing "implied" powers should be in any way reduced; however, it is clear that the "implied" powers of indefinite retention do not apply to the new "auxiliary" provisions contained in the 1967 Act. In 21 U.S.C. 672 Congress specifically created the power to "detain" and limited such power to a period not to exceed twenty days.6
Claimant contends that since the meat food products seized herein were detained by the Government for in excess of twenty days prior to the filing of an action under § 673 the products must now be released and the action dismissed.
In United States v. 500 Pounds, supra, the court agreed with this contention and held that, whenever the Government elects to proceed by way of judicial condemnation under § 673, the limits of § 672 are applicable and an action must be brought within twenty days of detention.
We are unable to agree with that interpretation of the provisions of §§ 672-673, for, while it is true that § 672 limits the right of the government to physically detain beyond a maximum of twenty days, nowhere in the provisions of § 673 is the twenty day period of § 672 mentioned as a time limitation upon the filing of a libel action; indeed, a judicial proceeding may be instituted "at any time" against any carcass, part thereof, or meat food product which is adulterated or misbranded. 21 U.S.C. 673.
It may be that, if the property is held in excess of the twenty day period without action on the part of the government, a repossession of such property could be effected by the claimant through a proceeding in the nature of mandamus or replevin.
We conclude, however, that an interpretation of the provisions of § 672 making the twenty day detention limitation simply a method of maintaining the status quo pending an administrative decision on available options is consistent with the purposes of the Act (as those purposes are set...
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