8308. Action  to   enjoin- and  restrain  the  interstate   shipment   of  adulterated
bafeery products. U. S. v. Mose A. Lazere (Sioux City Bakery). Tried 
to the court. Preliminary injunction granted; consent decree granting 
permanent injunction.    (Inc. No. 73.)
COMPLAINT FILED : September 15, 1944; amended September 19, 1944, Northern 
District of Iowa, against Mose A. Lazere, trading as the Sioux City Bakery 
at Sioux City, Iowa.
NATURE OF CHARGE : That, since December 12,1941, until the time the complaint 
was filed, the defendant had been preparing and holding under insanitary con- 
ditions various bakery products and the raw materials used in their prepara- 
tion ; that the bakery products so prepared and held were adulterated under
*See also No. 8318.
See also Nos. 8338, 8490, 8491.
Section 402 (a) (3) in that they consisted in whole or in part of filthy sub- 
stances by reason of the presence of insect and larva parts, and were therefore 
unfit for food; and, Section 402 (a) (4), in that they had been held under insan- 
itary conditions whereby they might have become contaminated with filth. It 
was also charged that the products so prepared and baked by the defendant were 
being offered for interstate shipment at various intervals from Sioux City, 
Iowa, to Sioux Falls and other cities in South Dakota.
PRAYER OP COMPLAINT: That a preliminary injunction issue restraining the 
defendant from commission of the acts complained of, and that, after due 
proceedings, the preliminary injunction be made permanent.
DISPOSITION : September 22, 1944. After a hearing by the court, a decree was 
entered granting a preliminary injunction, and the court handed down the 
following opinion, together with findings of fact and conclusions of law conso- 
nant with the opinion:   *
HENRY N. GRAVEN, District Judge: "Application for temporary injunction 
under Federal Food, Drug, and Cosmetic Act. In this the United States asks 
for a temporary injunction against the defendant, Mose A. Lazere, under 21 
U. S. C. A. Section 332, 21 U. S. C. A. Section 331 (a) and 21 U. S. C. A. Section 
342 (a) (3) and (4). Evidence was presented at some length in behalf of both 
parties.
"The defendant for some years has been the owner and operator of a whole- 
sale'bakery business carried on at 815 West 7th Street, Sioux City, Iowa. The 
great bulk of his trade is in the State of Iowa. However, he for some years past 
and at the present time ships about five per cent of his production in interstate 
commerce. The interstate commerce shipments are made to patrons residing 
in South Dakota.
"The defendant for sometime has been the subject of concern to the inspectors 
under the Federal Food, Drug, and Cosmetic Act. On May 15th and 16th 1944, 
Ralph L. Swink, one of those inspectors, inspected the premises. The building 
in which the defendant's operations are carried on is a one-story building. It 
includes among other rooms, a storage room where flour, sugar and salt are 
stored, and working rooms where the bakery products are prepared. In the 
storage room that inspector found a large number of sacks of flour which had 
been gnawed into by rodents, and a large number which had been contaminated 
by urine and excreta from the rodents. On a number of sacks of flour were 
found rodent excreta pellets numbering from one to fifty. A number of sugar 
sacks had been gnawed into by the rodents, and in one sack of sugar was found 
a mouse nest with several baby mice in it. In an elevator used to convey flour 
several live weevils were found. Cockroaches were found in a can of glucose, 
and around fifty cockroaches were found in the working room in an unused 
cooler. In the working room rodent excreta was also in evidence. Cans of 
fruit and other containers were standing in the work room with covers off and 
cockroaches were crawling into them. Silver fish bugs were found crawling 
around the work room. There was a strong odor of sewage in the basement. 
The general appearance of the work room was unclean. Inspector Spink talked 
the matter over with the defendant at the time and urged improvement in 
conditions and made some suggestions. On July 31st 1944, the premises were 
again inspected by Inspector Swink accompanied by Inspector Hubbell. While 
improvement had been made in some of the conditions, yet a new undesirable 
condition manifested itself in regard to flies. The abandoned cooling system 
which had contained so many cockroaches had been removed. Part of the walls 
had been painted. Cockroaches were still running around and bugs were crawl- 
ing on the floor. Cans containing ingredients were standing open. The presence 
of rodents in the store room was still indicated. Live worms were found 
crawling in a recent shipment of flour. The fly situation was serious. In the 
portion where rolls were made each tray had from two to ten flies on it, and 
one tray had twenty-five flies on it. In other places flies were congregated in 
numbers running into the hundreds.   There were no fly-traps or fly paper for
? the lessening of the fly population. It appears that immediately across the 
alley from the premises is an abandoned barn which is a breeding place for 
rodents, and the defendant has and will always have trouble with rodents as 
long as the barn is allowed to remain there. The defendant has been attempting 
to get the City of Sioux City to have the barn removed or destroyed. While 
some steps have been taken by the City towards that end, the barn is still there.
It also appears that the defendant has been greatly handicapped in keeping the 
premises clean because of shortage of help due to war conditions. The Federal 
Food, Drug, and Cosmetic enforcement agency caused loaves of defendant's 
bread which had been shipped to South Dakota, to be analyzed. An analysis 
of two different purchases of defendant's bread made in two different places 
in South Dakota showed the presence of rodent hairs and insect fragments.
"The defendant's contentions in the main are (1) that none of the matters
found in the bread are injurious to the health, and that the conditions referred
? to under which his bakery goods are being produced, are not injurious to
health;   (2)   that he is doing the best he can under the conditions and
"In 21 U. S. C. A. Section 331 (a) it is provided:
The following acts and causing thereof are hereby prohibited :
(a) The introduction or delivery for introduction into interstate commerce of any 
food, drug, device, or cosmetic that is adulterated or misbranded.
"In 21U. S. C. A. Section 342 (a) (3) and (4), it is provided:
A food shall be deemed to be adulterated—>
(3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, 
or if it is otherwise unfit for food ; or (4) if it- has been prepared, packed, or held under 
insanitary conditions whereby it may have become contaminated with filth, or whereby 
it may have been rendered injurious to health.
"In 21 U. S. C. A. Section 332, it is provided;
(a) The district courts of the United States * * * shall have jurisdiction, for 
cause shown, and subject to the provisions of section 381 (relating to notice to opposite 
party) of Title 28, as amended, to restrain violations of section 331, except paragraphs 
(e), (f), (h), (i),and (j).
"There were material changes made in the law by the New Federal Food, 
Drug, and Cosmetic Act of June 25th 1938. The provisions of the new act here 
noted became effective June 25th 1989, and because of the recent effective date 
the number of opinions under the new law are not numerous.
"The defendant strongly contends that it is necessary for the Government 
to show that the bakery products of the defendant were injurious to the 
health. The defendant offered medical testimony to the effect that because 
of the high heat under which bread is baked that the presence of parts of 
rodents and bugs in the bread would not injure the health. Medical testimony 
was also offered to the effect that for the same reason the production of 
bakery products under the filthy conditions heretofore described, would not 
injure the health. There was further medical testimony that people 'could eat 
nice [mice] and not hurt them,' and that a person could eat mouse excreta 
without hurt to health.
"It was the rule under the former Federal Food, Drug, and Cosmetic Act 
that in the case of adulterated food, proof that it was injurious to the health 
was not essential. Anderson & Co. v. United States (9th Cir. 1922), 284 F. 
542; United States v. Two Hundred Cases of Adulterated Tomato Catsup (D. C. 
Oregon, 1914), 211 F. 780; United States v. Two Hundred Cases, more or less 
of Canned Salmon (D. C. Texas, 1923) 289 F. 157. Since the new Act is more 
stringent as to filthy food than the old act, the defendant's contention that 
the Government must show that the food in question is injurious to the health 
cannot be sustained. In the recent case of United States v. Swift & Co. (D. C. 
Georgia, 1943), 53 F. Supp. 1018, having to do with the meaning to be given 
to the word 'filthy' found in 21 U. S. C. A. Sec. 342 (a) (3), on page 1020 of 
the opinion it is stated:
Congress intended that the word "filthy," as used in the Act, should be construed to 
have its usual and ordinary meaning, and should not be confined to any scientific or 
medical definition.
"It would also seem plain that the term 'insanitary conditions' used in 
21 U. S. C. A. Sec. 342 (a) (4), should also be construed to have its usual 
and ordinary meaning.
"It is the holding of the Court that the bakery products in question did 
consist of a 'filthy' substance under 21 U. S. C. A. 342 (a) (3), and were pre- 
pared under 'insanitary conditions' under 21 U. S. C. A. 342 (a) (4).
"It is the claim of the defendant that he should not be enjoined from shipping 
his bakery products in interstate commerce because he is doing the best he 
can in view of the difficulty of securing help and in view of the difficulties 
caused by the abandoned barn in the matter of the rodent problem. While 
the situation in which the defendant finds himself can be sympathetically 
understood, yet it would not be good law or good sense to permit a person to 
put filthy food substances into interstate commerce, or to permit a person to
prepare food for such purpose under insanitary conditions. The Federal Food, 
Drug, and Cosmetic Act does not provide that parties shall avoid doing such 
things if it is possible, it provides that it shall not be done at all. A party 
who cannot prepare proper food products under sanitary conditions must cease 
putting such products into interstate commerce. It is obvious that in the 
instant case the defendant cannot comply with the Federal Food, Drug and 
Cosmetic Act without a drastic rehabilitation of his premises, and that until 
such drastic rehabilitation is made that he should be enjoined from shipping 
or offering to ship in interstate commerce bakery products prepared on the 
premises in question."
On May 21,1945, the defendant having consented, the preliminary injunction 
was made permanent. The court retained jurisdiction for the purpose of 
modifying or dissolving the decree, but ordered that no application for modi- 
fication or dissolution be made prior to January 1,1946.