US v. EIGHT UNLABELED CASES, MORE OR LESS
| Decision Date | 20 December 1995 |
| Docket Number | No. 94 CV 5466.,94 CV 5466. |
| Citation | 909 F. Supp. 129 |
| Parties | UNITED STATES of America, Plaintiff, v. EIGHT UNLABELED CASES, MORE OR LESS, OF AN ARTICLE OF FOOD, Each Case Containing 12 Cans, Labeled in Part: (can) "* * * Spiced Mud-Skipper * * * Net Wt: 98 Grams Shelf Life: Two Years * * * Manufactured by Zhuhai Cannery * * * Sale Agent: Easy & Busy Ltd. P.O. Box 5067, G.P.O. H.K. * * *" and 6,300 CASES, MORE OR LESS, OF AN ARTICLE OF FOOD, Each Case Containing 6/100 Ounce Cans, Labeled in Part: (case) "* * * Dragon Seed * * * Mushrooms * * * Packed for Tai Wing Hong, Importer, Inc. * * * Product of Taiwan * * * 6 Tins X 2840G * * *" (can) "* * * Dragon Seed * * * * Mushrooms Net Wt. 100 Oz. (6 Lb. 2 Oz.) * * * Packed for Tai Wing Hong, Importer Inc. * * * Product of Taiwan * * *", Defendants. |
| Court | U.S. District Court — Eastern District of New York |
United States Attorney's Office, Civil Division (Charles P. Kelly, of counsel), Brooklyn, New York, for plaintiff.
Grunfeld, Desiderio, Lebowitz & Silverman (Robert B. Silverman, of counsel), New York City, for defendants.
The United States brought this action under the Food, Drug, and Cosmetic Act (the Act), 21 U.S.C. § 301 et seq., seeking the seizure, condemnation, and destruction of allegedly mislabeled and adulterated mushrooms and fish (spiced mud skipper) held in Brooklyn in the premises of Tai Wing Hong, Importer, Inc. (Tai Wing Hong) under a Customs bond. The court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355 and 21 U.S.C. § 334.
After commencement of the action Tai Wing Hong laid claim to the food. The government has moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure in order to condemn and destroy the food. Tai Wing Hong has cross-moved for partial summary judgment.
Tai Wing Hong concedes that both the mushrooms and the mud skipper are adulterated and misbranded. It does not contest condemnation and destruction of the mud skipper but seeks dismissal of the claim against the mushrooms and either an order to export or permission to export them to Hong Kong. The chief issue concerns whether or not the government may condemn the mushrooms.
The relevant facts are undisputed. In June 1994, Tai Wing Hong offered for admission into the United States three shipments of food products, including the mushrooms, imported from Hong Kong. The Customs Service (Customs) did not allow the goods into the United States but conditionally authorized delivery to Tai Wing Hong, to be held under a Customs bond pending inspection by the United States Food and Drug Administration (the Food and Drug Administration).
On several occasions between June 28 and August 9, 1994, inspectors from the Food and Drug Administration visited Tai Wing Hong's premises in Brooklyn and took samples from the three shipments.
At the warehouse an inspector noticed that there had been other labelling under the Taiwanese Dragon Seed labels on the mushroom containers. He also observed scraps of labels lying around the containers.
Analysis of the sampled mushrooms at the Food and Drug Administration's Center for Food Safety and Applied Nutrition revealed contamination with staphylococcal enterotoxin, which causes severe and sometimes fatal food poisoning. Inspection of the size of the cans and the nature of their codes and markings confirmed that they did not originate in Taiwan, as the labels claimed, but in the People's Republic of China.
During the summer of 1994, the Food and Drug Administration advised Tai Wing Hong that the food contained in its June shipments appeared to violate the Act and might therefore be refused admission. In August 1994, it issued Notices of Release for some products and Refusal for other products contained in the three shipments, but took no administrative actions as to the mushrooms and mud skipper. On October 24, 1994, Tai Wing Hong requested the release of the mushrooms for exportation.
On November 23, 1994 the United States Attorney commenced this action and obtained warrants of arrest for the mushrooms and the mud skipper, which were thereafter seized. The Government then made the motion for summary judgment.
Tai Wing Hong argues that since the mushrooms were not admitted into the United States the government may not condemn them but must allow Tai Wing Hong to export them.
The question is whether the government may condemn the mushrooms under § 334(a) of the Act or must proceed under § 381 of the Act and give Tai Wing Hong the opportunity to send them back to its supplier.
Section 334(a) provides, in relevant part, that any article of food that "is" adulterated or misbranded "when introduced into or while in interstate commerce" or while held for sale (whether or not the first sale) after shipment "in interstate commerce" may be ordered "condemned" in a federal district court. 21 U.S.C. § 334(a)(1) (Supp.1995). Section 334(d) provides, in pertinent part, that any food condemned under § 334 shall be destroyed or sold as the court "may" direct, and that "if the article was imported" into the United States and the person seeking its release establishes certain conditions "the court may permit the article to be delivered to the owner for exportation in lieu of destruction."
Section 381(a) of the Act authorizes the government to take samples of food "imported or offered for import" into the United States and, if it "appears" from the samples or otherwise that the food is adulterated or misbranded, to refuse it admission. The parties agree that when the government acts under § 381 and refuses admission it "shall" grant the importer 90 days in which to reexport the goods to its foreign supplier and "shall" destroy the goods unless they are exported. Id.
Tai Wing Hong says that only when the government permits imported food to be released into the United States does the food become "introduced into" or "in commerce" so as to authorize the government to proceed to condemnation and destruction under § 334. Tai Wing Hong thus urges that if the concededly poisonous mushrooms are not "admitted into" the United States the government has no choice under § 381 but to allow their reexport.
The question of law, which appears not to have been decided in this circuit, is the meaning of the words "introduced into or ... in interstate commerce" in § 334(a). The Act defines "interstate commerce" to include not only "commerce between any State or Territory," but also commerce between a State or Territory "and any place outside thereof." 21 U.S.C. § 321(b).
The ordinary meaning of this language suggests that the mushrooms were "introduced into" commerce between the United States and a place outside thereof, i.e., Hong Kong, and were "in" commerce from the moment they were shipped from Hong Kong destined for New York.
As Mr. Justice Brandeis held as long ago as 1922 in Baltimore & O.S.W.R. Co. v. Settle, 260 U.S. 166, 170-71, 43 S.Ct. 28, 30, 67 L.Ed. 189 (1922), it is "the intention with which" a shipment is "made" that determines the "character of the movement as interstate." See also Texas & N.O.R. Co. v. Sabine Tram Co., 227 U.S. 111, 123, 33 S.Ct. 229, 233, 57 L.Ed. 442 (1912) ()
The invoice for the mushrooms shows they were destined for Tai Wing Hong's premises in Brooklyn, New York. They were thus "introduced into" commerce between Hong Kong and the United States.
Tai Wing Hong argues that a construction of § 334 to authorize seizure and condemnation of "imported articles" "still subject to detention" and not released into the United States would make § 381 "meaningless at the whim" of the government.
It is hard to believe that Congress left the government, which had discovered the dire consequences of ingestion of the mushrooms, no option other than to allow their introduction to the United States or to permit their reexport. To have restricted the government to such a choice would have had possible lethal consequences to consumers abroad, or perhaps in this country were a later importation of the mushrooms to remain undetected.
But in any event this court's construction of § 334(a) does not make § 381 meaningless. The two sections impose on the government different burdens of proof. Section 381 allows the government to refuse admission to goods where it "appears" they are adulterated or misbranded. On the other hand under § 334 it is not enough that the goods so appear. Only if an offending article "is" misbranded or adulterated may the court order condemnation and the government must prove its case by a preponderance of the evidence.
Section 381 remains an effective remedy when the government believes the food is adulterated or misbranded, but cannot prove it. Moreover, even when the government can prove adulteration or misbranding, it may under § 381...
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