10156. Adulteration of black raspberry puree. U. S. v. 1,322 Cans of Black Rasp- 
berry Puree. Consent decree of condemnation. Product ordered re- 
leased under bond. Motion by claimant for order requiring Government 
to supervise reprocessing, and motion by Government to set aside por- 
tion of decree; motions denied.    (F. D. C. No. 18933.   Sample No. 14464-H.)
LIBEL FILED :    February 4,1946, Northern District of Ohio.
ALLEGED SHIPMENT: On or about September 8, 1945, by Arthur C Marquart & 
Co., Benton Harbor, Mich.
PRODUCT:   1,322 cans of black raspberry puree at Cleveland, Ohio.
LABEL, IN PART:   "Black Raspberry Puree   30 Pounds Net   The Telling Belle
Vernon Co.   Cleveland, Ohio." 
NATURE OF CHARGE:   Adulteration, Section 402 (a) (3), the product consisted in
whole or in part of a decomposed substance.
DISPOSITION : March 12, 1946. The Telling-Belle Vernon Co., claimant, having 
consented to the entry of a decree, judgment of condemnation was entered and 
the product was ordered released under bond, conditioned that it be distilled 
for use in making cordials or brandies, or that it be reprocessed for the pur- 
pose of making jellies, under the supervision of the Food and Drug Administra- 
tion. On July 15,1946, a motion was filed by the claimant to require the Food 
and Drug Administration to supervise the reprocessing of the product into jelly. 
Thereafter, a motion was filed on behalf of the Government to set aside the 
portion of the consent decree permitting the reprocessing of the product for 
use as jelly. On or about November 8, 1946, after consideration of the briefs 
of the parties, the court handed down the following decision:
JONES, District Judge: "This case was disposed of by a consent decree ap- 
proved by attorneys for the claimant and the United States Attorney represent- 
ing the Government. The decree provides for the condemnation of the black 
raspberry puree because it was adulterated and upon bond allows the recon- 
ditioning by distillation or reprocessing for making cordials, brandies or jellies 
but subject to the approval of the Food and Drug Administration of the Fed- 
eral Security Agency.
"The claimant wants to reprocess the puree by filtration and make jelly of 
it. The Food and Drug Administration objects to this method and refuses to 
supervise a reconditioning process of the filtration type because, as it says, 
such a process would not produce a product which it would approve for human 
consumption.
"The claimant has filed a motion for an order of the court to require the Food 
and Drug Administration to supervise such a reprocessing. The plaintiff has 
moved to set aside that portion of the decree which allows the reprocessing 
by the pressing or filtration method. Voluminous briefs and affidavits have 
been filed by both parties.
"There is some doubt as to the authority of the court to alter a consent 
decree. However, it seems unnecessary to change the decree of the court. With- 
out a trial it is not possible to determine whether the reprocessing method 
proposed by the claimant complies with the provisions of the Pure Food and 
Drug law. That was not an issue in this case nor should it be determined on 
the motion of the claimant supported by affidavits and the briefs filed. That 
would be the issue in a new case if the claimant were allowed to reprocess the 
puree as it proposes and if the puree were subsequently condemned by the 
Food and Drug Administration.
"The purpose of vesting discretion and supervisory powers in the Food and 
Drug Administration as to reprocessing was to avoid such a succession of suits. 
After a product has been condemned its reprocess is a permissive matter within 
the discretion of the court as indicated by the use of the word 'may' in the 
statute. The statute also provides that the reconditioned puree must be 
brought into compliance with the provisions of the Pure Food and Drug law 
under the supervision of the Administration. Where several methods of re- 
processing are enumerated, as in this decree, the question of who shall deter-
mine the one to be used and which, when used, will bring the reconditioned 
puree into compliance with the statute seems to be the only question for deci- 
sion, i. e., does the claimant who does the reprocessing or the Food and Drug 
Administration under whose supervision the work is to be done have the right 
to determine the method which would bring the reprocessed product into com- 
pliance with the law 
"The Food and Drug Administration has determined that distillation is the 
only process which would recondition this puree for human consumption and 
which it would approve. I see no abuse of discretion in making this deter- 
mination nor can the court interfere with that determination. To interfere 
would be substituting the judgment of the court for that of the Food and Drug 
Administration upon a matter which it is better able to decide and "upon an 
issue which I think is not properly joined in this case.
"The fact that the claimant will suffer financial loss is not of great materi- 
ality. Its product was found to be unfit for human consumption and the recon- 
ditioning is not a matter of right but of permission by the Court.
"The motion of the claimant will be denied.
"The motion of the Government insofar as it seeks to alter the decree will 
likewise be denied.
"An entry may be presented in accordance with this ruling."