19370. Adulteration of canned herring roe.   U. S. v. 24 Cases, etc.   Claimant's 
'        motion denied for dismissal of libel against 24-case lot.  Decree of .con- 
demnation and destruction.    (F. D. C. No. 26385.    Sample Nos. 5539-K, 
39301-K.)
LIBEL FILED :   January 6, 1949, District of Maine.
260281—53 2
Laurinburg, Rocky Mount, and Raleigh, N. C., and Lebanon, Pa. These were 
return shipments.
PRODUCT: 24 cases and 181 cases, each case containing 24 15-ounce cans, of 
herring roe at Eastport, Maine.
LABEL IN PART:    (Can)    "Custom House   Herring Roe."
NATURE OF CHARGE: Adulteration, Section 402 (a) (3), the article in the 181- 
case lot consisted in whole or in part of a decomposed substance, and the 
article in the 181-case lot and the 24-case lot was unfit for food by reason of 
its tough, rubbery consistency.
DISPOSITION: The Riviera Packing Co., Eastport, Maine, claimant, filed a 
motion for dismissal of the libeUnsofar as it related to the 24-case lot, and 
on November 16, 1949, the court, after consideration of the briefs and argu- 
ments of counsel, handed down the following opinion in denial of such motion:
CLIFFORD, District Judge: "This is a motion by claimant to dismiss a libel 
in rem in so far as the libel relates to that part of the libelled goods, con- 
sisting of twenty-four cases of canned herring roe. The libel was brought by 
the United States of America under the Federal Food, Drug and Cosmetic Act, 
(1938) 52 Stat. C. 675, 21 U. S. C. sees. 301 and following, for the seizure 
and condemnation, under section 334 of said Act, of two lots of canned her- 
ring roe. These lots contained 181 and 24 cases, respectively, each case con- 
taining 24 cans of this product. The libel alleged that both lots were shipped 
in interstate commerce; that the contents of the 181-case lot were unfit for 
food, within the meaning of the Act, in that they consisted wholly or in part of 
a decomposed substance; and that the contents of both lots were unfit for food, 
within the meaning of the Act, in that they were of a 'tough, rubbery consist- 
ency.'
"A default decree was entered by this Court in this case, on February 9,1949, 
condemning both lots of herring roe, and ordering their destruction. By order 
of this Court filed February 19, 1949, made pursuant to agreement of the par- 
ties, the default decree was vacated and the case reinstated to the docket. 
Thereafter, the claimant, Riviera Packing Company, filed this motion to dis- 
miss the complaint, so far as it relates to the lot consisting of 24 cases.
"The only allegation contained in the complaint against the 24-case lot rests 
on the claim that the product therein contained was of a 'tough, rubbery, con- 
sistency.' By its motion to dismiss the complaint so far as it relates to the 
24-case lot, claimant raises the question whether a food product, not other- 
wise unfit for food, may ever be condemned as unfit for food merely because it 
is 'of a tough and rubbery consistency.'
"The motion to dismiss this portion of the libel should not be granted unless 
it appears to a certainty that the Government could not prevail under any 
state of facts which could be proved in support of the libel.
"Section 334 of the Act, 1938, 52 Stat. C 675, sec. 334, 21 U. S. C. sec. 334, pro- 
vides for the seizure and condemnation of 'any article of food . . . that is 
adulterated . . . when introduced into or while in interstate commerce.'
"Section 402 (a) (3) of the Act, 1938, 52 Stat. C. 675, sec. 402 (a) (3), 21 
U. S. C. sec. 342 (a)  (3), provides as follows:
A food shall be deemed to be adulterated—(a) ... (3) if it consists in 
whole or in part of any filthy, putrid, or decomposed substance, or if it i» 
otherwise unfit for food, . . . [emphasis supplied.]
"The answer to the question raised by the motion at bar is not to be found 
in any of the cases cited by counsel for the Government or for the claimant.
"The claimant's brief, supporting this motion, argues that the man on the 
street would never interpret or understand the word 'adulterated' to include 
the sense 'of a tough and rubbery consistency.' The claimant argues that the 
statutory words 'otherwise unfit for food' are intended merely to enlarge the
ban: of the statute from 'filthy, putrid, and decomposed' matter, and to, reach 
only other substances not within that classification but in some other way in- 
jurious to health. Finally, claimant urges that toughness is a term peculiarly 
subject to personal taste and therefore not a proper subject for regulation 
under the Food, Drug and Cosmetic Act. These points will be considered in 
order.
. "In its interpretation of the word 'adulterated' this Court must be guided 
by the definition given in the statute. See United States v. Coca Cola Com- 
pany, 241 U. S. 265 (1916), construing the 1906 Food and Drugs Act, and the 
construction placed upon it by the Court. This definition and its construction 
clearly extend beyond the dictionary meaning of the word, which is 'corruption 
by the addition of a foreign substance.'
"The statutory phrase 'otherwise unfit for food' is general on its face. The 
Government's brief lays great stress on the policy of Congress, as expressed 
in the Food, Drug and Cosmetic Act, to protect the consuming public in the 
purchase of food products. Counsel for the Government cite several cases 
where the Act has been applied, in carrying out this policy, to condemn food, 
products which contained no filthy, putrid or decomposed substances, nor any 
other harmful material, but which were characterized by an abnormal odor, 
taste, or color. F. D. C. 12002, 12012, 12090, 12122, 12284, 12299, 12543, and 
12591.
"The case of United States v. 184 Barrels Dried Whole Eggs, 53 F. Supp. 652 
(Dist. Ct. E. D. Wis., 1943), from which claimant quotes extensively, rules 
that the words 'filthy, putrid, or decomposed substances'—which had stood 
alone in an earlier version of the statute and had been construed to apply 
whether or not the decomposed substance made the product injurious to 
health—lost none of their force by the addition of the words 'or otherwise unfit 
for food.' Accord, United States v. 1851 Cartons, etc., 146 F. (2d) 760 (C. C. A. 
10, 1945). It is the opinion of this Court that the words 'otherwise unfit for 
food,' following as they do the word 'or,' must be construed as having strength- 
ened and enlarged the intended scope of the coverage of the Act.
"Toughness was the issue in a recent case in the United States District 
Court for the District of Oregon, United States v. 238 cases decided May 9, 
1949 but not reported. In that case the court considered whether canned 
center cuts of asparagus were too tough and woody to be fit for food. The 
case was heard on the merits: the Court himself sampled the product and dis- 
missed the case, ruling that the product was fit for food. Fairly to be under- 
Stood, but not expressed in his ruling was the assumption that the product 
could have been so tough as to warrant condemnation as unfit for food.
"It is the opinion of this Court that a food product may conceivably be 
'unfit for food' by reason of an excessively tough or rubbery consistency; and 
that a product which is unfit for food for this reason, as for any other, prop- 
erly falls within the construction of the statute and the policy of the Congress, 
that such products should be condemned for the protection of the consumer.' 
The issue, whether the product is so tough as to be unfit for food, is solely a 
factual one, and must be determined by the Court in a trial on the merits.
"The question of the standard to be applied in determining the degree of 
toughness which constitutes an article unfit for food may be somewhat trouble- 
some. As claimant has argued, the question is, in large measure, one of personal 
-taste. Some products are, by their very nature, much tougher to eat than 
others. The fussy, fastidious, finicky individual might, with disdain, refuse to 
accept and throw out the product of the claimant, because, to his taste it was 
too tough and rubbery to eat; yet the case hardened individual who brags 
he can eat anything, might, with relish, eat and enjoy the product of the 
claimant. We cannot accept as the standard or test that which might be 
applied by either one of these two types of individuals.
"In the -opinion of this Court, in order for a product to be subject to con- 
demnation as unfit for food, on account of its tough and rubbery consistency, 
the product must be proved to be so tough and rubbery that it cannot be, 
masticated and swallowed by the average, normal person.
"It is therefore Ordered, Adjudged and Decreed that the motion of claimant 
to dismiss that part of the libel relating to the 24-case lot of canned herring
roe be, and is hereby, dismissed."
On December 1, 1949, the court amended the above opinion as follows:
CLIFFORD, District Judge: "The Opinion and Order of the Court filed in 
the above-entitled matter on November 16,1949, is hereby amended by deleting 
so much of the first paragraph on Page six of said Opinion and Order as reads, 
that it cannot be masticated and swallowed by the average, normal person,' 
and by inserting in lieu thereof, the following:- 'that the average, normal per- 
son,  under ordinary conditions, would not chew  and swallow it.'"
On November 24, 1952, the claimant having failed to pursue the matter 
further, judgment of condemnation was entered and the court ordered that 
the product be destroyed.