United States v. 40 CASES, MORE OR LESS, ETC.

• Decision Date: 19 October 1960
• Docket Number: Civ. No. 8084.
• Parties: UNITED STATES of America v. 40 CASES, MORE OR LESS, OF Six One-Gallon Cans Article Labeled in Part (Can) PINOCCHIO BRAND 75 PERCENT CORN, PEANUT OIL AND SOYA BEAN OIL BLENDED WITH 25 PERCENT PURE OLIVE OIL — Packed by A.M.S. Packing Company, New York, — at Syracuse, New York.
• Court: U.S. District Court — Northern District of New York

188 F. Supp. 290

UNITED STATES of America

v.

40 CASES, MORE OR LESS, OF Six One-Gallon Cans Article Labeled in Part (Can) PINOCCHIO BRAND 75 PERCENT CORN, PEANUT OIL AND SOYA BEAN OIL BLENDED WITH 25 PERCENT PURE OLIVE OIL — Packed by A.M.S. Packing Company, New York, — at Syracuse, New York.

Civ. No. 8084.

United States District Court N. D. New York.

October 19, 1960.

Theodore F. Bowes, U. S. Atty., Syracuse, N. Y., Timothy F. O'Brien, Asst. U. S. Atty., Troy, N. Y., of counsel, for the United States.

Julius Zizmor, New York City, for claimant, A.M.S. Packing Co.

JAMES T. FOLEY, District Judge.

The claimant, A.M.S. Packing Company, moves to dismiss this libel proceeding for seizure and condemnation of the article of food designated in the title pursuant to the provisions of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. The factual situation is a simple one and a precise question of law involving the thrust of this important federal statute into intrastate activity is presented by the challenge of claimant to jurisdiction under the circumstances involved.

The allegations in the libel are very limited as to the improper acts charged against the claimant as violative of particular sections of the Statute. Further restriction of the grounds for seizure and condemnation is made by concession of the government in its supplemental memorandum "that the A.M.S. Packing Company, Inc. caused a number of vegetable oils to be blended together, after those oils had been shipped in interstate commerce, in such a manner that the combination of oils became misbranded." The charge usually made in this type proceeding that a product might be harmful for human use and consumption because of adulteration or debasement by adding inferior materials or making impure by admixture of inferior material seems to be lacking. The position of the government, as I understand it, is solely to the effect that the blended article manufactured in New York by the claimant company from oils shipped to it from outside the State contained "little or no olive oil" when the label attached to said article processed by blending in the State of New York by the claimant read that contained therein with other material and oils was 25 Percent Pure Olive Oil.

The facts are undisputed and clear from the allegations of the libel which in this type motion must be accepted as true. The olive oil component alleged as lacking or insufficient in the finished article "Pinocchio Brand" was imported from Spain, Italy and Tunisia. The gravamen of the charge in the libel by the stated position of the Government is that the article was misbranded while held for sale after shipment in interstate commerce within the meaning of 21 U.S. C.A. § 343(a). There is no question that the blending, manufacture and packing of the interstate components was done at Ozone Park, New York, and the shipment of the goods was between New York City, Syracuse and Utica. It is not contended by the Government that the oils blended in the manufacture were misbranded or adulterated in their separate shipment in interstate commerce to the claimant in New York.

It is true that the amendment of 1948 to Section 334(a), 21 U.S.C.A. extending the scope of sale to articles "while held for sale (whether or not the first sale) after shipment in interstate commerce" is a broad and important one to insure protection of the article of food to the ultimate consumer. The notes under the provision in the Code annotated indicate the purpose of the amendment was to make it co-extensive with 21 U.S.C.A. § 331(k), a criminal provision. It is not an easy statute to read and construe. Justice Rutledge, in his concurring opinion in United States v. Sullivan, 332 U.S. 689, 699, 68 S.Ct. 331, 92 L.Ed. 297, described the Act as long and complicated. Justice Frankfurter, dissenting in the same case, (332 U.S. at page 705, 68 S.Ct. at page 340), in his inimitable style, characterized the scope and meaning of the Statute to "hardly be so clear that he who runs may read, or that...