United States v. 36 Drums of Pop'n Oil, 11917.

• Decision Date: 14 November 1947
• Docket Number: No. 11917.,11917.
• Citation: 164 F.2d 250
• Parties: UNITED STATES v. 36 DRUMS OF POP'N OIL.
• Court: U.S. Court of Appeals — Fifth Circuit

164 F.2d 250 (1947)

UNITED STATES v. 36 DRUMS OF POP'N OIL.

No. 11917.

Circuit Court of Appeals, Fifth Circuit.

November 14, 1947.

Theron L. Caudle, Asst. Atty. Gen., and John T. Grigsby, Atty., Dept. of Justice, of Washington, D. C., and J. Ellis Mundy, U. S. Atty., and Allen E. Lockerman, both of Atlanta, Ga., for appellant.

Durwood T. Pye, of Atlanta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Pursuant to a libel filed by the United States, thirty-six drums of mineral oil, under the trade name of Pop'n-Oil, were seized and held in the custody of the Marshal, pending further orders of the court below respecting the same. The libel of information alleged that said oil was adulterated within the meaning of Section 342 (b) (2), (b) (3), and (b) (4), Title 21, of the United States Code, Annotated, and that it was also misbranded within the meaning of Section 343(b) of said code. After a trial upon the merits, the court vacated the seizure, ordered possession of the oil restored to the claimant, and dismissed the libel.

The court below held that the article seized was not harmful, that the drums were not misbranded, and that, in the absence of any definition or standard of identity prescribed by the Administrator, the true labeling of the article was a compliance with the Act.

The drums contained 99.3% mineral oil, artificial color and flavoring constituting the other seven-tenths of one per cent. This product was sold, shipped, and intended to be used as food. When popcorn is popped with Pop'n-Oil, the corn absorbs a substantial amount of the oil, so that 100 ounces of prepared corn would have in it from six to seven ounces of Pop'n-Oil. From a scientific standpoint, this was a very considerable amount, it being generally recognized that mineral oil has no food value. According to one dealer, who was a witness, the popcorn sold by him contained about 12½% of mineral oil. As to the harmful effects from the use of mineral oil as a food, the expert testimony (developed by questions from the court) is positive and uncontradicted.¹ The product under seizure is of a rich yellowish color, and resembles the color of melted butter. The types of oil ordinarily used in the popping of corn are cocoanut, cotton-seed, and soybean, but during the war there was a shortage of these oils, and some distributors sold mineral oil for that purpose. Until the shortage of vegetable oils brought on by the war, mineral oil had never been used for popping corn. Mineral oil has no food value whatever, and therefore does not add to the food value of popcorn. A quantity of 6 or 7 per cent of any ingredient added to a food is a considerable rather than an infinitesimal amount. At the close of the Government's case, the claimant rested without adducing any evidence.

Although the Government has abandoned its charge of misbranding, it has not abandoned any of its charges of adulteration but has concentrated its argument in this court on the following specific questions:

1. Whether the court erred in concluding that, in the absence of a definition and standard of identity promulgated under 21 U.S.C.A. § 341, the truthful labeling of the article was a compliance with the Act.

2. Whether the court erred in concluding that the truthful labeling of the article exempted it from the provisions of 21 U.S. C.A. § 342(b) (3) and (4).

3. Whether the court erred in failing to find from the uncontroverted evidence that the article was adulterated within the meaning of 21 U.S.C.A. § 342(b) (3) and (4) when introduced into or while in interstate commerce.

The relevant statutory provisions are Sections 304(a), 401, 402(b) (3), and 402 (b) (4) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a), 341, 342(b) (3), and 342(b) (4).

We think the adulteration of the product was not cured by its truthful labeling. Adulteration should not be confused with misbranding. The ultimate consumer of the popcorn probably never sees the labeling. The cartons containing the popcorn, sold in theatre vending machines, do not contain any statement showing that the popcorn dressing consists of 99.3% mineral oil, artificially colored and flavored. We think the Government's evidence sustained its allegations of adulteration under 21 U. S.C.A. § 342(b) (3) and (4).

Even in the absence of a reasonable definition and standard of identity, promulgated under 21 U.S.C.A. § 341, truthful labeling does not exempt an article from the provisions of 21 U.S.C.A. § 342(b) (3) and (4), which provide that a food shall be deemed adulterated if damage or inferiority has been concealed in any manner; and also that a food shall be deemed adulterated if any substance has been added thereto or mixed or packed therewith so as to make it appear better or of greater value than it is.

In the instant case, mineral oil has been artificially colored and flavored to make it look like butter or vegetable oil. That mineral oil is inferior to melted butter on popcorn is plain. It is also inferior to cocoanut, soybean, or cotton-seed oil. To conclude that a food for which a standard of identity has not been promulgated is exempt from the economic adulteration provisions of the Act would result in rendering inoperative all of 21 U.S.C.A. § 342(b). The Administrator is not required to promulgate definitions and standards of identity for foods under any and all conditions. Administrative selectivity in such standardization is a part of his discretion and responsibility. To permit a class of foods not so selected to escape other applicable provisions of the law would create a loophole which the Act sought to avoid.

The evidence compels the conclusion that the oil sought to be condemned was artificially prepared to appear to be an acceptable popcorn dressing made from vegetable oil having a substantial food value, or from butter. It is a matter of common knowledge, of which the court may take judicial notice, that for use as food melted butter is superior to mineral oil.

The decree appealed from is reversed, and the cause remanded to the district court with directions to enter a decree of condemnation against the articles seized.

Reversed.

SIBLEY, Circuit Judge (dissenting).

Zeal for enforcement, I think, is here outrunning common sense and the true intent of the law. The seizure was made in 1943, in the midst of the late war. Theretofore the dressing for popped corn had been some animal or vegetable oil, such as melted butter, cocoanut oil, soybean oil, cottonseed oil, or Wesson oil. Because of war conditions, cocoanut oil could not be had at all, butter and cottonseed oil, soybean and Wesson oil, which had food value, became scarce and practically unobtainable because of the war demand for foodstuffs. Something else had to be substituted in the popcorn business, carried on at movie theaters and similar places of amusement, where popcorn is eaten in idleness and not for nutriment. Mineral oil, which had long been used in salad dressings in place of olive oil and the like, and is still so used, came into general use for the popcorn dressing. It was colored light yellow, (which is the natural color of most oils and greases unless refined out), and was flavored to give the popcorn some taste. No...