United States v. Lord-Mott Co., 20250.

• Decision Date: 18 July 1944
• Docket Number: No. 20250.,20250.
• Citation: 57 F. Supp. 128
• Parties: UNITED STATES v. LORD-MOTT CO., INC.
• Court: U.S. District Court — District of Maryland

57 F. Supp. 128

UNITED STATES v. LORD-MOTT CO., INC.

No. 20250.

District Court, D. Maryland.

July 18, 1944.

COPYRIGHT MATERIAL OMITTED

Ross McKenrick, Asst. U. S. Atty., of Baltimore, Md., and Joseph L. Maguire, Senior Atty., Federal Security Agency, of Washington, D. C., for United States of America.

Eli Frank and John Henry Skeen, both of Baltimore, Md., for defendant.

WILLIAM C. COLEMAN, District Judge.

The defendant here, a Maryland canning corporation, is charged, by information, with having violated a Government regulation for determining, in part, the standard of quality for canned peas.

The Court, sitting as a jury, a jury having been waived, finds the defendant not guilty. It finds that the regulation upon alleged violations of which the information is based, is invalid because it exceeds the authority granted to the Federal Security Administrator, commonly known as the Administrator, by the Federal Food, Drug, and Cosmetic Act of June 25, 1938, 21 U.S.C.A. §§ 301-392, incl., to pass such a regulation, and therefore the Court's verdict must be not guilty as to the defendant.

It is, of course, true that this Court, sitting as a jury in a criminal case, must instruct itself in the same manner that it must instruct a jury with respect to the constitutional rights and privileges of the defendant, and to the requirement as to burden of proof, namely, that the Government in order to convict, shall sustain the burden of proof to the satisfaction of the jury (or the court sitting as a jury) beyond a reasonable doubt, upon the evidence, and only upon the evidence, as adduced at the trial. However, in the present case there is raised a defense that may be raised in any criminal case in advance of the actual trial by motion, or demurrer, or, as in the present case, by oral motion supported by testimony taken at the trial, i. e., the defense of invalidity of the regulation itself. In such case, where the question of validity is a factual one, the weight of the credible evidence controls. The proof of validity — or invalidity — is not required to be established, — as is the guilt of the accused once the regulation is found to be valid, — beyond a reasonable doubt. One may be guilty of violating a law or regulation but if the law or regulation is found to be unconstitutional or invalid for any reason, then, of course, it becomes unnecessary to determine whether or not the Government has sustained the burden of proof of guilt to the satisfaction of the jury, or the Court sitting as a jury, beyond a reasonable doubt. So, to summarize, as the Court sees the weight of the credible evidence, it requires the Court to hold that by promulgating the regulation in controversy the Administrator exceeded the limits of his authority as respects the subject matter upon which it was exercised.

The pertinent sections of the Federal Food, Drug, and Cosmetic Act are the following:

First, among the enumerated acts and the causing thereof which are prohibited are "(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded," and "(b) The adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce." 21 U.S.C.A. § 331, subsections (a) and (b).

Second, it is provided that any person who violates the aforegoing provisions "shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than one year, or a fine of not more than $1,000, or both such imprisonment and fine; but if the violation is committed after a conviction of such person under this section has become final such person shall be subject to imprisonment for not more than three years, or a fine of not more than $10,000, or both such imprisonment and fine." 21 U.S.C.A. § 333, subsec. (a).

Third, the law provides that "Whenever in the judgment of the Administrator such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, and/or reasonable standards of fill of container." 21 U.S.C.A. § 341.

Fourth, the law provides that "A food shall be deemed to be misbranded —

* * * * *

"(h) if it purports to be or is represented as—

"(1) a food for which a standard of quality has been prescribed by regulations as provided by section 341, and its quality falls below such standard, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard." 21 U.S.C.A. § 343, subsec. (h).

Fifth, "(a) The authority to promulgate regulations for the efficient enforcement of this chapter, except as otherwise provided in this section, is hereby vested in the Administrator." 21 U.S.C.A. § 371, subsec. (a). Following this subsection are detailed provisions covering the conduct of hearings; the effectiveness of definitions and standards of identity; the promulgation of regulations and proposed changes in regulations; the making of orders and the review of orders promulgated as a result of hearings, including provisions for review by the Circuit Court of Appeals for the Circuit wherein any person who would be adversely affected by a given order resides, or has his principal place of business; with provision also for final review by the Supreme Court. Finally, there is the following: "(6) The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law." 21 U. S.C.A. § 371(f) (6).

We reach the conclusion that, independently of the provision last quoted, in a criminal proceeding of this kind in the absence of some clearly expressed, valid provision in the law itself for an exclusive method of testing the validity of regulations or orders of the Administrator, a defendant is not precluded from raising the question at the trial, as has been done in the present case.

Having thus found that the defendant had a right to be heard, ab initio, in this proceeding with respect to the validity of the regulation, regardless of what the testimony, taken at a hearing conducted, as provided by the Act, on behalf of the Administrator, may show; regardless of the motives of the Administrator in promulgating the regulation, and regardless of whether or not the defendant was present at such hearing or was opposed to or in favor of the regulation, we pass to a recital of the reasons why we think the Administrator exceeded his authority in the present instance, and why, therefore, the defendant was not compelled to meet the requirements of the regulation with respect to the one specific part of it which is here involved, namely, the so-called alcohol insoluble solids, or the "AIS", method of testing quality.

We find from the weight of the credible evidence in the present case that, while this "AIS" regulation embodies a fair and reasonable way per se of determining the grade of canned peas, which, in fact, the defendant admits, nevertheless the Administrator, in the tolerance allowed in the requirements imposed by that method, has failed to make the application of that method just and reasonable to the present defendant and all others in like circumstances.

Among the suggested findings of fact as reported in the Federal Register of November 25, 1939, pages 4679-4682, are the following which were ultimately adopted by the Secretary of Agriculture as the Department findings and formed the basis for the regulation here in question, and which appear in the Federal Register for February 24, 1940, pages 741-744:

"48. The extent to which insoluble solids are present governs the mealiness of peas when they are chewed. The art of...