16538. Adulteration and misbranding of canned tomatoes.   U. S. v. 716 Cases
*   *   *.   Decree of condemnation.   Product ordered released for re- 
- .        labeling.   Petition for review by court of appeals filed by Govern- 
ment.   Order for relabeling reversed.    Product ordered destroyed.
(F. D. C. No. 25741.   Sample No. 23417-K.) 
LIBEL FILED :    September 10,1948, Eastern District of Oklahoma. 
ALLEGED SHIPMENT :   On or about July 26 and August 2, 1948, by the Whltten
Bros. Canning Co., from Paris, Tex. 
PRODUCT:   716 cases, each containing 24   1-pound, 3-ounce cans, of tomatoes
at Duncan, Okla. 
LABEL IN PART :    "Del Comida Brand   Tomatoes."
NATURE OF CHARGE: Adulteration, Section 402 (b) (2), a product containing 
added water had been substituted in whole or in part for canned tomatoes.
Misbranding, Section 403 (g) (1), the article failed to conform to the 
definition and standard of identity for canned tomatoes since it contained 
added water which is not permitted as an ingredient of canned tomatoes; 
and,( Section 403 (h) (1), the article fell below the standard of quality for 
canned tomatoes since the drained weight of the contents of the container of 
the article was less than 50 percent of the weight of water required to fill the
?See also No. 16502.
container, and its label failed to bear a statement that the article fell below 
the standard. 
DISPOSITION: On April 18, 1949, Alfred Whitten and Harold Whitten, doing 
business as the Whitten Bros. Canning Co., claimants, having admitted the 
allegations of the libel and having requested permission to relabel the product, 
the court, after consideration of the pleadings and arguments of counsel, 
handed down findings of fact and conclusions of law that the article was mis- 
branded as alleged in the libel; but that the addition of water did not con- 
stitute within the meaning of the law an Adulteration of such other condition 
as to prevent under applicable provisions of law such relabeling as would 
properly show the contents of the article since it was, despite the adding of 
water, a wholesome food. On the same date, the court entered a decree of 
condemnation and ordered the product released under bond for relabeling 
under the supervision of the Federal Security Agency. The Government ap- 
pealed to the United States Court of Appeals for the Tenth Circuit from that 
portion of the decree directing that the product be released for relabeling, and 
on January 5,1950, the following decision was handed down by that court:
MTJEEAH, Circuit Judge: "Pursuant to Section 304 (a) of the Federal Food, 
Drug and Cosmetic Act, 52 Stat. 1040 et seq., 21 U. S. C. A. 334 Ca), a libel 
of information was filed by the United States for the seizure and condemnation 
of 716 cases of canned food labeled in part 'Del Comida Brand Tomatoes Con- 
tents 1 Lb. 3 Oz.' The libel alleged that the food was adulterated within the 
meaning of 21 U. S. C. A. 342 (b) (2) in that a product containing water 
had been substituted wholly or in part for canned tomatoes; and that the 
product was also misbranded within the meaning of, 21 U. S. C. A. 343 (g) 
(1) in that it failed to conform to the definition and standard of canned 
tomatoes as prescribed by regulations 53.41 (a) (1) promulgated by the 
Federal Security Administrator pursuant to 21 U. S. C. A. 341. In their 
answer, as claimants, Alfred Whitten and Harold Whitten, doing business as 
Whitten Brothers Canning Company, Paris, Texas, admitted the allegations 
of adulteration and misbranding, but requested permission to relabel the food 
on the ground that it was wholesome and fit for human consumption, and that 
reprocessing the product into tomato puree, catsup or any other similar product 
would be extremely expensive.
"Upon the pleadings, and after a pretrial hearing, the trial court found that 
the article, although misbranded and adulterated, was not adulterated within 
the meaning of 21 U. S. C. A. 342 (b) (2). It accordingly provided in the 
decree of condemnation that the article be released to the claimant for the 
purpose of truthful labeling. The Government has appealed from that portion 
of the decree which directed that the article be released to the claimant for 
relabeling.
"Section 334 (d) of the Act provides that the court may, under prescribed 
conditions, direct that the condemned article be delivered to the owner, thereof 
to be destroyed or brought into compliance with the provisions of the Act 
under the supervision of an officer or employee. But nothing in this section 
of the Act authorizes the court to permit the introduction in interstate com- 
merce of any article of food that is adulterated, though truthfully labeled.
"Section 342 (b) (2) provides that 'A food shall be deemed to be adulter- 
ated * * * if any substance has been substituted wholly or \n part there- 
for.' The Government contends here that because of the added or substi- 
tuted water, the product is adulterated and cannot therefore be introduced in 
interstate commerce, though truthfully labeled.
"21 U. S. C. A. 341 provides that ^Whenever in the judgment of the Ad- 
ministrator such action will promote honesty and fair dealing in the inter- 
est 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 * * *.' It is conceded that 
because of the addition of water, the article falls below the standard of canned
tomatoes prescribed by Section 53.41 (a) (1) of regulations promulgated by 
the Administrator pursuant to 21 U. S. C. A. 341 (Sec. 401 of the Act). But, it 
is argued by the claimants, that since the food is wholesome and fit for human 
consumption, it could be sold under correct labeling and the purchaser would 
therefore not be misled. The Government counters with the proposition 
that once an article has been condemned as adulterated, its contraband char- 
acter cannot be cured by a truthful statement of the manner in which it is 
adulterated, and the fact that it is fit for human consumption is immaterial.
"The test of adulteration within the meaning of the Act does not turn upon 
whether the article is non-injurious and fit for human consumption. The Act 
was. not intended to be confined to misbranding and the addition of adulte- 
rated substances deleterious to the health of consumers. It provides protection 
to the consumer from 'economic adulteration' by which less expensive ingredi- 
ents are substituted, or the proportion of more expensive ingredients is dim- 
inished so as to make the commonly identified article inferior to that which 
the consumer would expect to receive when purchasing it, although not in it- 
self deleterious. Federal Security Adm. v. Quaker Oats Co., 318 U. S. 218; 
United States v. 36 Drums of Poppy Oil, 164 F. 2d 250; United States v. 2 Bags, 
etc., 147 F. 2d 123.
"The term 'canned tomatoes' is certainly a common or usual name for a 
standard article, and concededly by the addition of the water, the article 
under seizure here falls below the standard of quality of canned tomatoes 
provided in Section 53.41 of regulations promulgated by the Federal Security 
Agency; #and is adulterated in that a substance has been substituted wholly 
or in part therefor. The use of a substandard label does not raise the stand- 
ard of identity to comply with the Act and regulations.
"It thus becomes unnecessary to consider whether the article was also mis- 
branded within the meaning of Section 403 (g) of the Act (21 U. S. C. A. 
343(g) (1)).   The judgment is reversed."
In accordance with the foregoing opinion and in view of the failure by the 
claimant in requesting permission for the release of the product for reprocess- 
ing, an order was entered on June 26, 1950, directing that the product be de- 
stroyed.   The product was disposed of for rase as hog feed.