United States v. 310 CANS, MORE OR LESS, ETC.
| Decision Date | 07 January 1959 |
| Docket Number | 58 C 1694.,Civ. No. 58 C 1230 |
| Citation | 170 F. Supp. 16 |
| Parties | UNITED STATES of America v. 310 CANS, MORE OR LESS, etc., labeled in part: "MODERN EGG PRODUCTS, Inc., FROZEN WHOLE EGGS, 30 Lbs. Net Weight". UNITED STATES of America v. 272 CANS, MORE OR LESS, of an article labeled in part: "204 FROZEN WHOLE EGGS * * * 30 Lbs. Net Wt. * * * 56174 207". |
| Court | U.S. District Court — Northern District of Illinois |
Robert Tieken, U. S. Atty. for Northern Dist. of Illinois and Richard C. Bleloch, Asst. U. S. Atty., Chicago, Ill., for plaintiff.
Frank J. McGarr, of McKay, Solum & McGarr, Chicago, Ill., for claimant.
1. On or about May 21, 1958, June 16, 1958, and July 28, 1958, Modern Egg Products, Inc., Nashville, Tennessee, shipped from Tennessee to Chicago, Illinois, consigned to Weinberg Bros. and Co., articles of food consisting respectively of 610, 539, and 272 30-pound cans, more or less, of frozen whole eggs.
2. On July 7, 1958, the United States of America filed a Libel of Information in civil action number 58 C 1230 charging that the articles of food shipped on May 21, 1958, and June 16, 1958, were adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(a) (3), in that they consisted wholly or in part of a decomposed substance by reason of the presence therein of decomposed eggs.
3. On September 12, 1958, the United States of America filed a Libel of Information in civil action number 58 C 1694 charging that the article of food shipped on July 28, 1958, was adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S. C.A. § 342(a) (3), in that it consisted wholly or in part of a decomposed substance by reason of the presence therein of decomposed eggs.
4. Weinberg Bros. and Co., Chicago, Illinois, filed a claim of ownership and answer in each of the Libel proceedings and denied the allegation of adulteration.
5. The two causes were ordered consolidated and set for trial by the Court, without a jury.
6. It was stipulated that from the date of shipment from Nashville, Tennessee, and up to the present time, all of the cans of eggs have continuously been in hard frozen form and their quality and condition is the same as it was when introduced into interstate commerce.
7. Organoleptic examination by smell was made by inspectors of the Food and Drug Administration of: 74 cans randomly sampled from the shipment of May 21, 1958, and 21 of these gave off the odor of decomposed eggs; 20 cans randomly sampled from the shipment of June 16, 1958, and 9 of these gave off the odor of decomposed eggs; 20 cans randomly sampled from the shipment of July 28, 1958, and 15 of these gave off the odor of decomposed eggs.
8. The cans randomly selected and examined by inspectors of the Food and Drug Administration and physical samples taken therefrom by them for bacteriological and chemical examination by scientists of the Food and Drug Administration were representative of the quality and condition of the shipments of which they were a part.
9. At request of claimant, inspectors of the Department of Agriculture organoleptically examined by smell all of the cans from each of the shipments and determined that 4 cans of the May 21, 1958, shipment; 26 cans of the June 16, 1958, shipment; and 31 cans of the July 28, 1958, shipment smelled unsatisfactory.
10. All of the cans of eggs which smelled decomposed to the Food and Drug inspectors or unsatisfactory to the Department of Agriculture inspectors consisted in whole or in part of decomposed substances.
11. Some decomposed eggs do not have an odor and their presence in a can of frozen eggs cannot be determined by organoleptic examination but can be determined by bacteriological and chemical analyses.
12. The aroma of odoriferous decomposed eggs in a can of frozen whole eggs can be diluted out but the presence of such eggs can be determined by bacteriological and chemical analyses.
13. The physical samples collected by the Food and Drug inspectors were examined by an experienced bacteriologist of the United States Food and Drug Administration who found that the direct microscopic count of bacteria in the samples of the frozen eggs here involved was in the following range:
May 21, 1958 Shipment - 61,000,00 - over 350,000,000
June 16, 1958 Shipment - 33,000,00 - 78,000,000
July 28, 1958 Shipment - 51,000,00 - 123,000,000
14. Physical samples collected by the Food and Drug inspectors were analyzed by an experienced Food and Drug Administration chemist whose chemical analyses of the samples of the frozen eggs here involved showed the presence of (in milligrams per 100 grams):
May 21 June 16 July 28
acetic acid 4.4 - 19.3 7 - 9.8 7.1 - 9.4
lactic acid 44 - 64 35 - 47 45.1 - 49.2
formic acid not tested for 0 - 4.0 not tested for
succinic acid not tested for 0 - 3.9 not tested for
15. The shipper of the eggs, Modern Egg Products, Inc., retained a private, independent, professional analyst who randomly sampled cans from each shipment and determined that every can sampled smelled decomposed upon organoleptic examination.
16. The private food analyst retained by the shipper collected physical samples from each of the shipments and utilizing the same methods of analysis as did the Food and Drug Administration chemist found acetic and lactic acids in each of the samples.
17. The bacteriological and chemical methods of analyses for detecting decomposition in frozen eggs which were developed by and used here by the Government scientists and the private food analyst have been published and are accepted by the frozen egg industry as a reliable method for detecting decomposition.
18. All of the scientific evidence in the case, presented by employees of the Food and Drug Administration, employees of the Department of Agriculture, and the private, independent analyst retained by the shipper, shows that each of the shipments of frozen eggs here involved consist in part of decomposed substances by reason of the presence of decomposed eggs.
1. The articles of food here involved were shipped in interstate commerce from Nashville, Tennessee, to Chicago, Illinois, on the dates alleged in the Libels of Information.
2. The articles were seized in the Northern District of Illinois and the Court has jurisdiction over these consolidated causes and the parties.
3. That each of the shipments of frozen whole egg made by Modern Egg Products, Inc., on May 21, 1958, June 16, 1958, and July 28, 1958, constitutes an article for purposes of 21 U.S.C.A. § 334.
4. Organoleptic tests by use of the sense of smell are determinative of the presence of decomposed substances in frozen eggs, within the meaning of 21 U.S.C.A. § 342(a) (3), when the odor of decomposition is present. Decomposition can exist, however, within the meaning of 21 U.S.C.A. § 342(a) (3) even when no odor is obtained but this decomposition will be detected by bacteriological and chemical analyses.
5. The presence of bacteria in frozen whole egg in an amount in excess of 5,000,000 per gram of egg by direct microscopic count is determinative of the presence of decomposed substances in the eggs within the meaning of 21 U.S.C.A. § 342(a) (3).
6. The presence of acetic, formic or succinic acid in any measurable quantity in frozen whole egg is determinative of the presence of decomposed substances in the eggs within the meaning of 21 U.S.C.A. § 342(a) (3).
7. The presence of lactic acid in excess of 7 milligrams per 100 grams of egg in combination with a direct microscopic bacteria count of 5,000,000 or more is determinative of the presence of decomposed substances in frozen eggs within the meaning of 21 U.S.C.A. § 342 (a) (3).
8. By reason of the presence therein of decomposed eggs, a part of each of the articles here involved was adulterated when introduced into and...
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United States v. 1,200 CANS, PASTEURIZED WHOLE EGGS, ETC.
...there. Far less — as few as four cans from one shipment — was acceptable in one egg case. United States v. 310 Cans, More or Less, 170 F.Supp. 16 (N. D.Ill.1959). Recognizing that the trend is to order condemnation if the lot is decomposed "to any degree",9 the court is still not satisfied ......