7115. Adulteration of frozen- -whiting.    IT. S. v. 1,851 Cartons of Frozen Whiting.
Tried to court; -verdict for the defendant. District court judgment 
dismissing the libel reversed on appeal; final decree entered ordering the 
release of the fit portion and condemning the unfit portion, and ordering 
its release under bond to be sold for animal feed. . (F. D. C. No. 11145. 
Sample No. 36478-F.) 
IT. S. v. 17,900 Pounds and 20 Boxes of Frozen Whiting. Default decrees 
of condemnation and destruction. (F. D. C. Nos. 12011, 12081. Sample 
Nos. 43280-F, 48194-F, 67123-F.)
LIBELS FILED: Between November 20, 1943, and March 29, 1944, District of 
Colorado, Western District of Kentucky and District of Nebraska.
ALLEGED SHIPMENT: Between the approximate dates of October 19, 1943, and 
February 26, 1944, by Pond Village Cold Storage Co., Provincetown and 
North Truro, Mass.
PRODUCT: 1,851 15-pound cartons of frozen whiting at Denver, Colo., 20 15- 
pound boxes at Omaha, Nebr., and 17,900 pounds at Louisville, Ky.
LABEL IN PART: (Portion) "H & G Famous Booth Sea Foods Whiting * * * 
Booth Fisheries Corp Boston Mass."
VIOLATION CHARGED: Adulteration, Section 402 (a) (3), the product consisted in 
whole or in part of a decomposed substance.
DISPOSITION: April '22 to May 10, 1944. No claimant having appeared for the 
Louisville and Omaha lots, judgments of condemnation were entered and the 
product was ordered destroyed.    On or about May 6, 1944, Booth Fisheries
? Corporation, Denver, Colo., claimant for the Denver lot, having denied that 
the product was adulterated, trial of the case was had before the court. After 
the Government had presented its case, the claimant moved for a directed 
verdict and dismissal of the libel on the ground that the Government's proof 
did not sustain its charge of adulteration. The proceedings in the district 
court are set forth in the following opinion of May 22, 1944, granting the 
claimant's motion for a directed verdict and dismissing the libel:
MEMORANDUM OPINION ON DEFENDANT-CLAIMANT
'
s MOTION TO -DISMISS THE LIBEL
FOSTER, District Judge: "The defendant-claimant at the end of the Govern- 
ment's case moved to dismiss the libel on the ground that the Government's 
evidence does not sustain the charge.
"After, considerable argument the court granted the motion, stating its 
reasons, upon the cbndition that the claimant give bond that in, the selling
or disposition of any of this fish they give to the retailers written notice calling 
attention to the fact there had been found in the shipment an occasional bad 
fish, and the retailer before selling or delivering it to any customer should 
warn the purchaser to examine it himself. This was agreed to by both sides 
in open court, and a written notice was duly prepared and agreed to, consisting 
of a rubber stamp containing such a notice to be affixed to every carton or box 
as it left the possession- of the claimant.
"Later the Government, for good and sufficient reasons I presume, withdrew 
its consent to this arrangement and has asked for a clear decision on the merits. 
The court therefore withdraws the above memorandum and substitutes the 
following in passing upon the motion.
"The charge is that contrary to Sec. 331, Title 21, USCA, the defendant 
introduced 1851 cartons, more or less, each containing 15 pounds of frozen 
whiting (fish), into interstate commerce by transporting it from Provincetown, 
Massachusetts to Denver, Colorado. That said article of food was adulterated 
within the meaning of Sec. 342 (a) (3), Title 21, USCA, in that it consisted 
'in whole or in part of a decomposed substance'.
"Said Sec. 342, Title 21 USCA (a) (3), says "'a food shall be deemed tube 
adulterated' as the libel charges (3), 'If it consists in whole or in part of any 
filthy putrid, or decomposed substance, or if it is otherwise unfit for food'. The 
Government has left out of its charge the last part of the subsection as follows, 
to-wit, the words 'or if it is otherwise unfit for food'.
"On this motion we are required to consider the-Government's evidence 
only giving it full value as uncontradicted.
"Our decision of this motion necessarily depends upon the testimony of the 
Government experts. The chief Government witness, Dr. Lewis Chernoff, is a 
graduate chemist employed for many years by the U. S. Food and Drug Ad- 
ministration in Denver. Dr. Chernoff has appeared in this court many times 
in similar cases and we entertain a very favorable opinion of his ability. He' 
testified he has examined fish products for many years, and on November 9th 
and 10th, -1943, examined 26 boxes taken as samples from this shipment, 
• seized by the Government while in a cold storage plant in Denver and taken 
to Dr. Chernoff's office. The fish when delivered to -him were in hard, frozen 
blocks. He opened the cartons put the fish in trays permitting them to thaw 
out overnight. Next day he examined each fish separately by cutting or 
slitting it down the back and smelling.   This is known as the organoleptic test.
"In many of the boxes he did not find any decomposed or bad fish at all. 
Out of a" total of 1119 fish he found 55 or 4.9% decomposed. By decomposed 
he meant rotten, unfit for human consumption. His test—the only one he 
made—was his sense of smell, the odor being very offensive. The following 
questions and answers are informative: 
. "Q. 'If someone had eaten them what effect would it have had?'
"A. 'I don't know.   If they were cooked they probably might be all right.'
"Q. 'What?',
"A. 'If they were cooked and eaten they might be all right. They might 
cause illness.    I have no idea.'
"He said the balance of the fish outside of the 55 were all right.
"On cross-examination he testified that whiting was a salt water fish and 
when received were headless and gutted. That he made a personal examination 
of every one of the 1119 fish. That of those he examined the skin appeared to 
be normal and firm. That he made no notes on the physical condition of the 
fish. He did not make a bacteriological examination or chemical test, but simply 
organoleptic; that is a test by the senses of smell, sight, touch and taste. He 
did not make an indol test—indol being one of the" by-products of decomposition 
of protein products and might determine decomposition. His test consisted 
simply of subjecting the 1119 fish to his sense of smell. Further, to sum up, 
of the 1119 fish so examined 55 smelled bad or putrid, and the balance were 
edible.
"On being recalled the witness testified he examined another 18 boxes of this 
same shipment on January 25th. Like the other examination they were frozen. 
He opened the boxes and placed the fish on pans allowing them to thaw over- 
night-. He examined them the next morning. That out of the total of 768 
fish 48 were unfit for food, or 6.2% by count. The only test he made was the 
organoleptic; that is he judged them solely by the smell.
"At the trial of the case—and at the request of counsel for both sides— 
additional • samples of the whiting were brought in to a room adjoining the 
•court and opened- up and examined by Dr. Chernoff and the court.-   The results.
of this examination are shown in Govt. Ex. A, signed by Mr. Williams de- 
fendant's expert Mr. Vincent, head of the Food and Drug Division office in 
Denver and Dr. "Chernoff. Four hundred and eleven fish selected at random 
were examined in the presence of the court and the average per* cent of bad fish 
found therein by Dr. Chernoff was 3.6%; that is to say 15 out of 411 fish, it 
was agreed, were unfit, showing signs of decomposition. The court found these 
upon personal examination to have a bad, disagreeable, putrid odor.
"While the sole question in the case, under the pleadings, is whether the 
fish consisted wholly or in part of a decomposed substance, the over-all question 
of course is whether they were fit for human consumption.
"It will be observed from Dr. Chernofl's testimony that the number of 
decomposed fish in the first exhibit unfit for human consumption was less than 
5%, and of the second lot examined in January was a little over 6%. , No 
witness qualified to or attempted to state what the effect of eating any of these 
decomposed fish would have upon the consumer. Dr. Chernoff did testify that 
the housewife would, in processing these fish before serving them, have ample 
opportunity to detect any bad odor. He said the cooking they would be 
subjected to might in most instances eliminate any danger of food poisoning. 
Furthermore, it would seem that the effect on the human system if consumed 
as food would depend largely upon a bacteriological test, which in this case was 
not made.
"U. S. v. Commercial Creamery Co., 43 Fed. Supp. 714, involved frozen 
eggs. The testimony of the Government was that of three witnesses who 
inspected the eggs sought to be condemned. They used the organoleptic test 
only, and while the case was a criminal one where the Government's allegations 
must be proven beyond a reasonable- doubt, the court on such testimony dis- 
missed the action, recognizing that the organoleptic test was justified only 
because it was quicker and, as the Government inspector testified, permitted 
more tenitorial coverage than could be obtained by the combined use of this 
method with any of the other three. The court noted that chemists had for 
years been seeking more efficient and rigid methods for determining decom- 
position in eggs, citing authorities, and observed that it was difficult for the 
court to believe that if the organoleptic test is as efficient as the Government 
witnesses said it was, that such complete and consistent efforts were being made 
by the chemists to acquire rapidity in their processes. And further stated that 
what is true of the chemists is also true of the bacteriologists, and stated it 
doubted whether the American Public Health Association would have interested 
itself to the extent that it has in bacteriological studies if the Government's 
contention as to the scientific efficiency of the organoleptic method were cor- 
rect.
"In the case at bar the organoleptic test made by the Government's chemist 
in the presence of the court was that less than 4% of the fish in question were 
decomposed, and according to Dr. Chernoff this might be very greatly reduced 
by the processing that the fish would undergo in the house before being consumed.
"In U. S. v. Two Hundred Cases of Catsup, 211 Fed. 780, it says, p. 782.
* * * there is no fixed standard by which it can be determined when a product 
has reached such a state of decomposition as to "consist in whole or in part of filthy, 
decomposed, or putrid vegetable substance" * * * I infer from the testimony of 
the experts that it would be difficult, if not impossible, to fix any arbitrary standard by 
which the question could be determined, as it depends upon so many contingencies. In 
any event, no such standard has been fixed, in the absence of which each case must be 
determined on its own facts.
"And in Andersen v. U. S.,-284 Fed. 542, it is said, p. 545:
It appeared from the cross-examination of the government witnesses that they have 
heretofore suffered canned salmon containing a small percentage of filthy, decomposed, 
or putrid matter to pass
" in interstate commerce unchallenged, but there is no room for 
controversy over percentages under the statute itself, for it excludes all. Of course, 
where the entire product is not inspected or tested, the proof must go far enough to 
satisfy the court or jury that the adulteration extends to the whole product sought to 
b6 condemned.
"I find no case that holds an entire shipment, such as the one at bar, can be 
condemned merely upon a finding that a percentage as small as the evidence 
here is decomposed, especially where there is no charge or evidence that the 
fish is unfit for food.
"In U. S. v. Two Hundred Cases, more or less, of Canned Salmon, 289 Fed. 
157, Judge Hutcheson—then a District Jug"e::-discussed this whole question 
and refused to follow the Andersen case, stating that while proof that-the con- 
sents of 20% of cans in a shipment were adulterated with riefrrmg hi6re, ihight
authorize the inference the whole product was bad, and therefore support a 
condemnation of the lot where the same proof which establishes the adulteration 
of one-fifth estabhshes the lack of Adulteration of the balance, the Government 
must fail, except as to the cans identified as adulterated. The court analyzed 
the testimony—which was about the same as in the case at bar—and stated 
the Government evidence proving part bad, and relied on for the inference that 
all was bad, proved just as conclusively that part of it was not bad within the 
meaning of the statute; that it the Government depended for its condemnation 
upon subdivision 6 of Sec. 7 of the Act, in accordance with the general rule of 
law that the burden is upon the Government to prove its case, the Government 
would have to be cast in this suit, or would have to take the alternative of 
examining and testing every can of the shipment. That view is applicable to our 
situation. The testimony of Dr. Chernoff proves that except for the number of 
bad fish found, the balance of the shipment which he examined was all right and 
fit for human consumption.
"C. J. S. Vol. 36,.Sec. 16, p. 1076:
Statutes and ordinances-intended to prevent the manufacture or sale, of food or food 
products that are unwholesome or unfit for human consumption will be enforced in 
accordance with their proper construction. * * * or by reason of their decay, 
[Commonwealth v. Prince, 89 N. E. 1047]. The statutes are not intended to regulate 
tastes or appetites, and the courts will not deem an article of food unwholesome merely 
because it is unpalatable to many, or even most, persons. [McNeill & Higgins Co. v. 
Martin, 107 So. 299]. Furthermore, an article of food is not unwholesome within such 
a statute, merely because it is unwholesome to a particular individual or to normal 
persons under abnormal conditions; it must have such qualities that normal persons 
generally, in a normal condition, would be adversely affected by its consumption. It 
has been said that the condition of a product in the hands of a consumer is the place 
and time to test its fitness for food; [U. S. v. Four Hundred and Fifty-three Cans of 
Frozen Egg Product, 193 Fed, 5,89].
"And according to Sec. 16, p. 1073:
* * * an article of food shall be deemed adulterated * * * if it contains any 
poisonous or deleterious substance which may render it injurious to health, [U. S. v. 
1232 Cases American Beauty Brand Oysters, 43 Fed. Supp. 749] or contains any added 
substance or ingredient which is poisonous or injurious to the health, * * * or 
consists in whole or in part of a filthy, decomposed, or putrid substance, [52 Fed. (2d) 
476; 43 Fed. Supp. 714; 208 Fed. 419].
"C. J. S. Vol. 36, Note 61, p. 1074:
The word "decomposed", as used in such a statute, [referring to the Federal statute], 
means more than the beginning of decomposition; it means a state of decomposition, 
[See also 26 C. J. p. 762, Note 76 ; and 284 Fed. 542 (infra).]
"In Andersen v. NJ. T3. (supra), a food case, 408 cans of Salmon were selected 
at random from 408 of 1974 cases. One hundred forty-four cans of the second 
lot were first analyzed and found to contain eight putrid or tainted, and one 
stale can. The third lot of 192 cans contained 36 putrid or tainted, and 12 stale 
Kans. That a putrid of tainted can was said to be one that contained rotten or 
decayed salmon with an offensive odor, while a stale can was disclosed as the 
beginning of decomposition, but not in so far advanced a state as the putrid or 
tainted Kans. The net result was that one-fifth of the product analyzed was 
putrid or tainted and one-fourth either putrid and tainted or stale. It further 
appeared that decayed salmon was not injurious to health.
"The claimant offered no testimony and upon its motion the court directed a 
verdict in its favor, which was reversed by the Court of Appeals, which said that 
decomposition begins when life ends, but meat and fish are not decomposed at 
that early stage. Decomposed means more than the beginning of decomposi- 
tion, it means a state of decomposition, and the statute must be given a reason- 
able interpretation to carry out the legislative policy or intent.
"In IT. S. v. Commercial Creamery Co. (supra), it was held that the Federal 
Food, Drug and Cosmetic Act is designed to prevent injury to the public health 
and the introduction into interstate commerce of foods which consist in whole or 
in part of any filthy, putrid or decomposed substance, and the intent of Congress 
was to exclude from interstate commerce impure and adulterated food, and to 
prevent facilities of commerce from being used to enable such articles to be 
transported to people who consume them. And it is in the light of such power 
exerted by Congress that the Act must be construed.
' "In conclusion: The Government's testimony proves that a very small 
percentage of the entire shipment (less than 6%), was decomposed and the 
balance (95% plus), was all right. There is no evidence that even the bad fish 
was sufficiently decomposed to violate the object of the statute, to-wit, to pre- 
vent the introduction into interstate commerce of food unfit for human consump- 
tion.    Further under the authorities (supra), the testimony, to say the least,
throws considerable suspicion on the efficiency of the organoleptic test alone as 
justifying the condemnation of the entire shipment.
"The motion for a directed verdict is granted and the libel dismissed."
On June 2, 1944, the district court entered an order staying the release of the 
product for a period of 30 days. On June 26, 1944, notice of appeal having been 
filed in the United States Circuit Court of Appeals for the 10th Circuit, that 
court handed down an order further staying release of the product to the 
claimant. Argument was had on August 2, 1944, and the court entered judg- 
ment reversing the district court judgment and ordering that the case be re- 
manded for further trial in the district court. On August 11, 1944, the claimant 
having filed an amended answer admitting the allegations of the libel and the 
court having found that a part of the product was not adulterated, judgment 
was entered releasing the good portion to the claimant and condemning the 
remainder. The adulterated portion was released under bond to the claimant 
to be sold for use as animal food, under the supervision of the Food and Drug 
Administration.
On January 8, 1945, the Circuit Court of Appeals for the 10th Circuit issued 
the following memorandum opinion:
MUBBAH, Circuit Judge: "In pursuance of Section 304 (a) of the Federal 
Food, Drug and Cosmetic Act of June 25, 1938 (52 Stat. 1040, 21 U. S. C. A. 
301 et seq) the United States instituted a libel of information in the United 
States District Court of the District of Colorado, seeking condemnation of 
approximately 1,851 cartons of frozen fish, each containing 15 pounds, and 
allegedly consisting 'wholly or in part of a decomposed substance', which, had 
been shipped in interstate commerce from the State of Massachusetts into the 
state of Colorado. The Booth Fisheries Corporation, as claimant, answered 
admitting the shipment in interstate commerce, but denying the allegation with 
respect to adulteration. .Upon facts which are conclusive here the trial court 
found that approximately 6% of the entire shipment consisted of decomposed- 
substance, but dismissed the libel on the grounds that it was not 'sufficiently 
decomposed' to be unfit for human consumption, and therefore was not 'adul- 
terated' within the meaning and purposes of the Act. The Government has 
appealed.
"One of the declared purposes of the Federal Food, Drug and Cosmetic Act 
is to prohibit the movement in interstate commerce of adulterated and mis- 
branded foods, drugs, devices and cosmetics. U. S. v. Dotterweich, 320 U. S. 
277, 280; McDermott v. Wisconsin, 228 U. S. 115, 128; Hipolite Egg Co. v. 
United States, 220 U. S. 45, 54. To effectuate that purpose the Act prescribes 
injunctive remedies (Sec. 302 (a) (b)) and criminal penalties (Sec. 303 (a) (b) 
(c)) for violations, and in addition thereto (subject to enumerated exceptions 
and limitations) specifically authorizes the seizure and condemnation of any 
'adulterated' food which is introduced or received in interstate commerce by a 
libel proceeding in any district court within the jurisdiction of which the 
adulterated food is found.   (Sec. 304 (a))
"Section 402 of the Act pertinently provides that a food shall be deemed to 
be adulterated 'if it consists in whole or in part of any filthy, putrid or decom- 
posed substance, or if it is otherwise unfit for food', and the sole question pre- 
sented by this appeal is whether frozen fish in 15 pound cartons found to con- 
sist of approximately 6% decomposed substance is adulterated and therefore 
subject to condemnation under the Act.
"The trial court held in substance that although the product seized consisted 
wholly or in part of a decomposed substance it was nevertheless fit for human 
consumption and was therefore not adulterated within the meaning of the 
statutory definition and the same argument is made here in support of the 
trial court's judgment.
"We cannot agree with the trial court's interpretation of the statutory defini- 
tion of 'adulterated' food. Before the amendment of June 25, 1938, sub-section 
6 of section 7 of the original Act of June 30, 1906 (34 Stat. 768) provided that 
an article should be deemed to be adulterated 'if it consists in whole or in part 
of a filthy decomposed or putrid animal or vegetable substance, or any portion 
of an animal unfit for food * *'. Giving effect to the objects and purposes 
of the legislation, the courts have uniformly held that when a food consisted 
'in whole or in part of a filthy, decomposed, or putrid animal or vegetable sub- 
stance' its interstate shipment was prohibited whether otherwise considered as 
fit for human consumption or not. United States v. Two Hundred Cases of 
Adulterated Tomato Catsup, 211 F. 780, 782; Anderson & Co. v. United States, 
284 F. 542; United States v. Krumm, 269 F.S48; United States v. Two Hundred
Cases of Canned Salmon, 289 F. 157; Knapp v. Callaway, 52 F. 2d 476; United 
States v. One Hundred Thirty Three Cases of Tomato Paste, 22 F. Supp. 515.
"Notwithstanding this strict construction of the language employed, of which 
Congress was undoubtedly aware, the amendment of 1938 (Sec. 402) not only 
impliedly approved this construction of its language but strengthened it by 
adding words which leave no doubt of its intention to free interstate commerce 
of any food if it consists 'in whole or in part of any filthy, putrid or decomposed 
substance'. The added clause 'or if it is otherwise unfit for food' is in the dis- 
junctive and does not condition, qualify, or obscure the plain meaning of the 
whole sentence when considered in its context. United States v. 184 Barrels 
Dried Whole Eggs, 53 F. Supp. 625. This view is supported by the general 
purpose of the amendment to extend the range of control over impure and 
adulterated food and drugs moving in interstate commerce. United States v 
Dotterweich, 320 U. S. 277."
According to the conclusive findings of the trial court each carton of fish 
seized consisted in part of fish in a decomposed state and it was necessary to 
thaw the fish in each carton in order to separate the decomposed substanct 
from the wholesome part. It is thus clear that the product in question comes 
within the interdiction of the Act and the judgment of the trial court is RE 
VERSED."