26477. Incubator reject eggs. ,(Inc. No. 342). COMPLAINT FOR INJUNCTION FILED: About 12-5-58, N. Dist. Ga., against Tech- nical Egg Products, Inc., Gainesville, Ga., and Curtis Parks, Jr., manager of the Gainesville plant. CHARGE: The complaint alleged that the defendants were engaged at Gaines- ville, Ga., in the business of purchasing, receiving, candling, and packing a product known in the trade as incubator reject shell eggs, and had been and were introducing and causing to be introduced into interstate commerce, in- cubator reject eggs which were adulterated within the meaning of 402(a) (3) by reason of the presence of decomposed egg material and eggs otherwise unfit for food because they were incubator reject eggs. It was alleged further that defendants employed a method of operation whereby defendants purchased incubator reject eggs from about 74 chicken hatcheries within the States of Georgia; that defendants arranged with several hatcheries to have the incubator reject eggs put into cases of thirty dozen ca- pacity and set aside until picked up by defendants; that defendants paid the hatcheries about $2.00 per case for the eggs and then transported them to the plant at Gainesville, Ga.; that upon receipt of the eggs at the Gainesville plant, the incubator reject eggs containing black rots, sour rots, mixed rots, embryos, and eggs ranging in other degrees of decomposition were unloaded and stacked for various and prolonged periods inside the plant without refrigeration; that the incubator reject eggs were then subjected to candling, the only operation performed at the Gainesville plant, which candling separated the grossly de- composed incubator reject eggs from the unfit-for-f ood incubator reject eggs; that defendants than shipped the candled incubator reject eggs to their plant at Nashville, Tenn., without denaturing the eggs so as to preclude their use in human food products. The complaint alleged further that the defendants were well aware that their acts were violative of the law; that various inspections had been made of the defendants plant by representatives of the Food and Drug Administration at which times the defendants were warned that their practices were violative of the law; that defendants had consented to several decrees of condemnation in- volving seizures of incubator reject eggs; and that defendant, Technical Egg Products, Inc., and its president, were convicted 11-29-57, of shipping decom- posed frozen whole eggs in interstate commerce; and that despite these warn- ings, defendants continued to ship adulterated eggs into interstate commerce. It was alleged also that the defendants had on hand at the Gainesville plant, stocks of incubator reject shell eggs which would in the usual and ordinary course of business be shipped in interstate commerce, and that such article constituted a menace to interstate commerce in that it was adulterated as de- scribed above. DISPOSITION : The court heard the Government's motion for a temporary re- straining order on 1-30-59, after affidavits had been filed by witnesses for the Government and the defendants. On 2-2-59, the court issued the following findings and conclusions of law: SLOAN, District Judge: FINDINGS "1. Incubator reject shell eggs are shell eggs that have been placed in ineu- bators and kept under a constant temperature of 98 degrees fahrenheit for varying numbers of days up to 20, but resemble in external appearance shell eggs as commercially marketed and are a food within the meaning of § 201(f) of the Act [21 U.S.C, § 321(f) (2) ]. "2. A large percentage of the incubator reject eggs are inedible and fall within the classification of inedible eggs, i.e. mixed rots, black rots, blood rings, and dead embryos and are therefore adulterated within the meaning of the Federal Food, Drug and Cosmetic Act, § 402(a) (3) [21 U.S.C, § 342(a).(3)]. "3. The defendants are introducing and causing to be introduced and de- livered for introduction into interstate commerce, incubator reject eggs which are adulterated. "4. The Court finds that there is danger of such adulterated food being di- verted to food use by breaking out and otherwise removing the egg from the shell and mixing the egg with magma and freezing in cans for distribution to bakeries and similar food industries that customarily use frozen eggs as a raw material. CONCLUSIONS OF LAW "This Court has jurisdiction of the case by virtue of the provisions of Title 21, § 332, U.S.C. "§ 331 of Title 21, U.S.C. prohibits the introduction into interstate commerce of adulterated foods and § 342(a) (3) provides 'food shall be deemed to be adulterated—(3) if it consists in whole in in part of any filthy, putrid or decomposed substance or if it is otherwise unfit for food' [Emphasis sup- plied.] "The affidavit of the defendant, Curtis Parks, Jr., states as follows: That he is manager and resident agent of the Georgia Branch of Techni- cal Egg Products, Inc., a Tennessee corporation. That the said corporation is in the inedible egg business and that from these infertile inedible eggs various technical products are produced, such as tanner's yolk and tech- nical albumen, and that none of said products which are produced by Tech- nical Egg Products, Inc., go into human food channels. "The term 'food' as used in the Federal Food, Drug and Cosmetic Act must be read in such a way that it includes, but is not limited to items which are unfit to be consumed. The test for determining whether an item is a food" un- der the Act can not be one of intended use. United States v. 52 Drums Maple Syrup, 110 F. 2d 914- It must of necessity be one which regards items as food which are generally so regarded when sold in a food form. Thus a rotten egg is one differing only in degree rather than kind from a sound egg. Eggs being sound or rotten are food under the statutory definition. If a dealer in inedible eggs, such as the defendants here, desires to utilize the channels of interstate commerce, with immunity from the provisions of the Federal Food, Drug and Cosmetic Act, it is necessary that he change the very nature of the product in which he deals. So long as the product retains a semblance of the identity it possessed as a food, the product must be considered as a food. United States v. Thirteen Crates of Frozen Eggs, 208 F. 950, affirmed, 215 F. 584. "The plaintiff is entitled to an injunction by virtue of the provisions of § 332 of Title 21, U.S.C. Let the temporary restraining order be prepared and presented and let it be specific in its terms enjoining the defendants herein, their agents, attorneys and servants until the further order of the Court from shipping or causing to be shipped in interstate or foreign commerce the incu- bator reject eggs unless they are first denatured so as to render them incapable of being used for food." Pursuant to the findings and conclusions of law, the court on 2-5-59, entered a temporary restraining order enjoining the defendants, until further order of the court, from introducing into interstate commerce: (a) incubator reject shell eggs which consist in part of a decomposed sub- stance by reason of the presence in the eggs of decomposed material and which are otherwise unfit for food because they are incubator reject eggs, unless and until the incubator reject eggs are completely denatured so as to preclude their use in human food products; and (b) any of the stocks of incubator reject shell eggs now on hand at the de- fendants' Gainesville plant, or incubator reject shell eggs elsewhere, unless and until all such eggs are completely denatured so as to preclude their use in hu- man food products, and thus brought into compliance with the law.