United States v. Articles of Hazardous Substance

• Decision Date: 08 February 1978
• Docket Number: No. C-78-23-G.,C-78-23-G.
• Citation: 444 F. Supp. 1260
• Court: U.S. District Court — Middle District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., Defendants.

444 F. Supp. 1260

UNITED STATES of America, Plaintiff, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., Defendants.

No. C-78-23-G.

United States District Court, M. D. North Carolina, Greensboro Division.

February 8, 1978.

COPYRIGHT MATERIAL OMITTED

H. M. Michaux, Jr., U. S. Atty., and Patricia W. Lemley, Asst. U. S. Atty., Greensboro, N. C., for plaintiff.

Norman B. Smith and John T. Manning, Greensboro, N. C., for defendants.

MEMORANDUM OPINION

GORDON, Chief Judge.

On January 18, 1978, the United States, acting for the Consumer Product Safety Commission (CPSC), obtained an ex parte warrant of seizure from the Clerk of this Court, directing the seizure of quantities of several different types of children's sleepwear which were treated with a substance commonly known as TRIS. As authority for its action, the government invoked 15 U.S.C. § 1265, a provision of the Federal Hazardous Substances Act (FHSA), which permits seizures of goods pursuant to a libel of information. The United States Marshal thereafter entered the place of business of Troxler Hosiery Company, Inc., and seized the articles specified.

Troxler Hosiery Company, Inc. (Troxler), promptly filed a motion to quash the warrant of seizure. The government then moved to strike Troxler's motion to quash the warrant of seizure on the grounds Troxler had failed to file a verified claim and answer as required by Rule C(6) of the Supplemental Rules of the Federal Rules of Civil Procedure. A hearing was held on both motions on January 25, 1978. In an order entered on January 27, 1978, the Court denied the government's motion to strike Troxler's motion and granted Troxler's motion because it found that the procedures employed by the government violated Troxler's constitutional rights. This opinion provides a fuller statement of the Court's reasons for entering the order.

Background

On April 8, 1977, the Consumer Product Safety Commission undertook to ban TRIS-treated articles on the theory that they are carcinogenic, by publishing a proposed amendment to 16 C.F.R. sec. 1500.18, to define as a hazardous substance, children's wearing apparel made from fabric containing TRIS. 42 Fed.Reg. 18850 (1977).

The Commission was enjoined on June 23, 1977, by the United States District Court for the District of South Carolina from enforcing the regulation banning TRIS, because the Commission had failed to follow the statutory provisions requiring notice, opportunity for hearing, and judicial review before adopting the regulation. Springs Mills, Inc. v. Consumer Product Safety Commission, 434 F.Supp. 416 (D.S.C.1977). On August 11, 1977, the United States Court of Appeals for the Fourth Circuit declined to stay the injunction pending appeal, but indicated that the injunction did not prohibit the Commission from taking individual enforcement actions against manufacturers and sellers of TRIS products. (No. 77-1969)

On December 6, 1977, the Commission withdrew its earlier "publications" banning TRIS. In their place the Commission issued a policy statement, reiterating its belief that TRIS products are banned hazardous substances. To support this belief, the Commission simply cited its earlier publications and undisclosed new information. The Commission also stated its intention to file individual enforcement actions to prevent sales of TRIS products. The Commission also stated that in these enforcement actions the Commission could and would not rely on its previously published "interpretations" or on its new "policy statement" to prove any hazards associated with TRIS. 42 Fed.Reg. 61621-22 (1977).

Motion of the Plaintiff to Strike Motion to Quash Warrant of Seizure

The government has moved to strike Troxler's motion to quash the warrant of seizure on the grounds Troxler failed to file a verified claim stating its interest in the seized children's sleepwear and failed to file an answer pursuant to Rule C(6) of the Supplemental Rules of the Federal Rules of Civil Procedure. The Court has examined the affidavits filed with Troxler's motion and concludes that Troxler has made a sufficient showing of its interest in the seized goods to challenge the government's seizure action. Although Troxler's motion may not be in technical compliance with Rule C(6), the Court would, if necessary, deem Troxler's motion and accompanying affidavits to be the claim required to be filed by Rule C(6).

Motion to Quash Warrant of Seizure

Troxler's first contention is that the Commission is not authorized by statute to seize TRIS-treated sleepwear. Troxler reads the Springs Mills decision in a way that would permit the CPSC to move against TRIS-treated goods only after conducting rule-making pursuant to 15 U.S.C. § 1261(q)(1)(B) or (q)(2). Springs Mills, however, held only that the Commission may not promulgate a nationwide ban on such products without first conducting formal rule-making pursuant to § 1261(q)(1)(B). The Commission contends in this Court that it may elect to proceed to establish a nationwide ban under the formal rule-making procedures set out in § 1261(q)(1)(B) or that it may proceed on a case-by-case basis under the criminal provisions of 15 U.S.C. § 1264, under the injunctive procedure of 15 U.S.C. § 1267, or as it has done here, under the seizure provisions of 15 U.S.C. § 1265. Resolving this question requires an examination of the structure of the Federal Hazardous Substances Act.

Section 1265 provides that "misbranded hazardous substances" and "banned hazardous substances" are liable to seizure by process pursuant to a libel of information. As previously stated, the Commission contends that the TRIS-treated goods seized from Troxler are "banned hazardous substances." A substance may be a "banned hazardous substance" either by meeting the definition in § 1261(q)(1)(A) or the one in § 1261(q)(1)(B). Section 1261(q)(1)(B) defines the term to include any substance which the Commission finds, after formal rule-making, to meet certain criteria. Section 1261(q)(1)(A), on which the Commission relies in this case, defines banned hazardous substances to be "any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted." The Commission further contends that the seized children's sleepwear meets the requirements of § 1261(q)(1)(A) because the TRIS with which they are treated meets the definition of hazardous substance in § 1261. Section 1261(f)(1) defines a hazardous substance as:

"(A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

"(B) Any substances which the Secretary by regulation finds, pursuant to the provisions of section (3)a, meet the requirements of subparagraph 1(A) of this paragraph.

"(C) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the Secretary determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this Act in order to protect the public health.

"(D) Any toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 3(e) of the Act, presents an electrical, mechanical, or thermal hazard."

The Commission contends that TRIS meets the statutory definition of hazardous substance contained in § 1261(f)(1)(A) because it is toxic within the meaning of § 1261(g). That subsection provides that the "term `toxic' shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface."

From an examination of the FHSA's structure, it appears that a substance may be a banned hazardous substance either because it has been so defined by the Commission in formal rule-making or because it meets the statutory definition in § 1261(q)(1)(A). Similarly, it appears that a substance may be a hazardous substance because it has been so defined by the Commission by regulation or because it meets the statutory definition contained in § 1261(f)(1)(A). This reading of the statute is also supported by the FHSA's legislative history which states:

"The Act covers substances which are toxicants, corrosives, irritants, strong sensitizers, flammable, and also substances which generate pressure. It also covers any radioactive substance (other than those mentioned below) if, with respect to such substance as used in a particular class of article or as packaged, the Secretary of Health, Education, and Welfare now the Commission determines by regulation that is sufficiently hazardous to require labeling in order to protect the public health. The Secretary also may, by regulation, declare to be a hazardous substance any substance which he finds meets the requirements of the basic definition of this term in the bill, if such action would promote the objectives of this legislation by avoiding or resolving uncertainty as to its application." 1960 U.S.Cong. & Admin.News at 2833.

From the foregoing examination of the FHSA, it appears that § 1265 authorizes seizure of goods which meet the statutory definitions provided in § 1261. Whether or not TRIS-treated children's sleepwear is, in fact, a statutorily "banned hazardous substance" is the question which is to be later decided should a jury be empanelled to hear the merits of the condemnation suit. But because the Court accepts the...