Before CLARK, FRANK, and HINCKS, Circuit Judges.
This appeal concerns a seizure proceeding under the Federal Food, Drug, and Cosmetic Act involving 449 cases of tomato paste allegedly "adulterated" within the meaning of § 402(a)(3) of that act, 21 U.S.C. § 342(a)(3).The government as libelant has sought - so far unsuccessfully - condemnation of the food in question upon a showing that it contained tissues rotted, but not necessarily deleterious to health.
The tomato paste, imported from Portugal, was landed in Brooklyn in the Eastern District on April 9, 1951, the entry being in bond. Representatives of the Federal Security Agency took samples for inspection; and on April 16 claimant, A. Fantis, the importer, received official notice from the Food and Drug Administration that the goods need not be further held. Claimant thereupon paid for the shipment and removed and sold fifty cases from the entire lot. In July, however, a government food inspector, checking the warehouse, noticed that several of the cases had been recoopered; and closer inspection revealed that several cans had been resoldered. This discovery led to a retesting of the shipment, which disclosed the presence of mold in the tomato paste in quantities exceeding administrative tolerances. The instant proceedings ensued.
It is undisputed that mold in tomato products indicates decomposition. It is also undisputed that when, as here, it results from rot in the tomatoes present before processing, it is not visible to the naked eye, but is detectable only by microscopic examination. Libelant at the trial did not offer proof that the paste was deleterious or unfit for food, in any way other than the decomposition, but contended that it was no part of the government's case to go beyond the showing made as to decomposition. Thereafter the district judge filed an opinion holding that the government had not sustained its burden of proof and that the shipment should be released to the claimant. D.C.E.D.N.Y., 111 F.Supp. 478. Libelant appeals from the resulting order.
Section 402(a)(3) provides that a food shall be deemed to the "adulterated," and hence subject to condemnation under § 304(a), 21 U.S.C. § 334(a), upon shipment in interstate commerce: "if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food." The district court apparently read "unfit for food" as limiting the entire section by virtue of the word "otherwise," and as requiring a showing that the product was deleterious. It is this construction which presents the issue on appeal. The point is novel in this circuit, though it has been decided by several other courts which have uniformly held that the government need not prove unfitness for food other than filth or decomposition. Bruce's Juices, Inc., v. United States, 5 Cir., 194 F.2d 935; Salamonie Packing Co. v. United States, 8 Cir., 165 F.2d 205, certiorari denied 333 U.S. 863, 68 S. Ct. 744, 92 L. Ed. 1142; United States v. 1851 Cartons Labeled in Part H. & G. Famous Booth Sea Foods Whiting Frosted Fish, 10 Cir., 146 F.2d 760; United States v. 935 Cases, More or Less, Each Containing 6 No. 10 Cans of Tomato Puree, D.C.N.D.Ohio, 65 F.Supp. 503; United States v. 44 Cases, etc., Viviano Spaghetti with Cheese, D.C.E.D.Ill., 101 F.Supp. 658, 663; see also United States v. Lazere, D.C.N.D.Iowa, 56 F.Supp. 730; United States v. 184 Barrels Dried Whole Eggs, D.C.E.D.Wis., 53 F.Supp. 652; and the monographic comment, Developments in the Law - The Federal Food, Drug, and Cosmetic Act, 67 Harv.L.Rev. 632, 644. This unanimity of view is itself impressive; moreover, we think the conclusion it represents is required both by the statutory language and by the history and general pattern of the legislation.
The entire subject matter of this subdivision of the statute is covered by two co-ordinate "if" clauses; and the second "if" indicates plainly that the second clause introduced thereby is co-ordinate and independent, rather than a qualification of the antecedent clause. The first clause expressly bans all products composed in whole or in part of any filthy, putrid, or decomposed substance; and the second clause goes on to add to the ban substances which were unfit for food for any other reason.
Furthermore, the other subdivisions of § 402(a) make specific reference to products which are "poisonous," "deleterious," "injurious to health," or "the product of a diseased animal." These provisions cover those cases where danger to health is direct and demonstrable. The specific listed characteristics are clearly essential elements to be proved in actions under those provisions which refer to them. But in the first clause of § 402(a)(3) the sweeping ban of products consisting in whole or in part of any decomposed substance without reference to their effect on health is not made to depend on any such additional props or findings to support the ultimate conclusion requiring the ban. It may well be that, in the judgment of the legislators, the presence of any substantial amount of rot in any food product was a sign of danger sufficiently pointed to justify and require the exclusion of the product from unrestricted circulation in interstate commerce. Or we may accept an acute suggestion of Judge Maris in United States v. 133 Cases of Tomato Paste, D.C.E.D.Pa., 22 F.Supp. 515, 516, that this section "was designed to protect the aesthetic tastes and sensibilities of the consuming public," and that the presence of such material in food, whether "perceptible by the consumer" or not, would offend both. For present decision it matters not which rationale is preferred, since in either event congressional power is clear and is not now challenged.
It should be noted also that the further class of adulterated foods thus added, i.e., "otherwise unfit for food," is a broad general classification allowing "the widest variety of reasons for condemning a food," 67 Harv.L.Rev. 632, 645, and not limited to either proof of filth or decomposition or to conditions deleterious to health. See, e.g., United States v. 24 Cases, More or Less, D.C.Me., 87 F.Supp. 826, 827, (canned herring roe of a "'tough, rubbery consistency'"), and cf. United States v. 298 Cases, etc., Ski Slide Brand Asparagus, D.C.Or., 88 F.Supp. 450 (dealing with "stringy asparagus"); and Steffy, "Otherwise Unfit for Food" - A New Concept in Food Adulteration, 4 Food Drug Cosmetic L.Q. 552 (1949) (citing a variety of examples). There is therefore no basis for equating unfitness for food with injury to health, and the assumed logical progression from decomposition to unfitness for food to injury to health as showing identic terms thus doubly fails.
The conclusion of these authorities, following the statutory language, that the phrase "unfit for food" is not constrictive, but rather is additional or cumulative, is of controlling importance here. Any attempt to develop a constrictive meaning runs into the difficulty - highlighted by the statutory history developed below - that there is literally no place to which the argument may lead. As appears, complete identification of this phrase with "injurious to health" is universally excluded. But it is manifestly impossible to work out some tertium quid, of content sufficient to be grasped and acted upon by government inspectors or courts, of matter which is worse than "filthy, putrid, or decomposed," but still less than injurious to health.At most, search for such an intermediate ground can only suggest something by way of a greater degree of filthiness or putridity, perhaps along the line of the government tolerance actually allowed, or, if not this, something hopelessly vague and variable, dependent upon the taste buds or olefactory senses of the inspectors and too shifty a basis to serve as embodiment of congressional intent of drastic prohibition with both civil and criminal sanctions. So it is not surprising that no precedent or authority actually supports such a classification. And so the argument for restrictive interpretation of the statute slips insensibly, although perhaps necessarily, into an identification of food unfitness with health injury. This becomes even more manifest upon an examination of the statutory history to which we now turn.
The particular definition of adulterated articles here involved - § 402(a)(3) supra - goes back to the original Federal Food and Drugs Act of June 30, 1906, which in § 7, 21 U.S.C. § 8, provided that an article "shall be deemed to be adulterated * * * Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter." It will be noted that this limits the phrase "unfit for food" to animal matter and unmistakably separates it from the reference to "filthy, decomposed, or putrid animal or vegetable substance." And so the uniform construction of the early act afforded "decomposed" an unrestricted meaning, requiring no proof of injury to health, e.g., A. O. Andersen & Co. v. United States, 9 Cir., 284 F. 542; United States v. 133 Cases of Tomato Paste, supra, D.C.E.D.Pa., 22 F.Supp. 515; Knapp v. Callaway, D.C.S.D.N.Y., 52 F.2d 476; United States v. Two Hundred Cases, More or Less, of Canned Salmon, D.C.S.D.Tex., 289 F. 157; United States v. Krumm, D.C.E.D.Pa., 269 F. 848; United States v. Two Hundred Cases of Adulterated Tomato Catsup, D.C.Or., 211 F. 780.*fn1
On the same day that Congress enacted the Food and Drugs Act, 34 Stat. 768, it enacted the parallel and complementary Meat Inspection Act of 1906, 34 Stat. 674 - a temporary measure which was permanently re-enacted in identical language in 1907, 34 Stat. 1260. The provisions for inspection of meat in this companion act continuously use the language "unfit for human food," sometimes with "otherwise," 21 U.S.C. §§ 71, 72, 76, 92, and sometimes without, 21 U.S.C. §§ 74, 89. The full phrase, as later used in § 402(a)(3) supra of the present act, therefore goes back to this time; and the several usages in the various sections, taken separately or cumulatively, and in their respective settings, are only rationally to be interpreted as adding an additional - not a delimited - class of banned products. When the phrase appears presently in § 402(a)(3), it clearly should have the same significance.*fn2
Thus Congress, when it enacted the present provisions, was aware of the broad construction placed on the earlier wording, as shown by the uniform course of case precedent supra; and the Act of 1938 here follows the earlier act so closely that an intent to restrict the provisions in material respect is not to be inferred. Sen.Rep.No. 361, March 13, 1935, on S. 5, Cal. 375, 74th Cong., 1st Sess., states: "* * * the provisions of Section 301(2), (3) and (5) [later incorporated into 21 U.S.C. § 342(a)] dealing with filthy food and food from diseased animals are essentially the same as those of the present law."*fn3 Moreover, amplification, rather than restriction, of power, is indicated elsewhere in the 1938 Act, as in the definition of adulterated drugs and devices in 21 U.S.C. § 351(a), which separates even by numbered clause and semicolon those consisting (1) of "any filthy, putrid, or decomposed substance" from those, (2) and (3), which are "injurious to health."*fn4 So, viewing the key phrase here in the light of history and the overall pattern of the legislative intent, we are clear that it must receive the same construction when applied to tomato paste as when applied to meat or drugs or oleomargarine or butter. It follows that we find correct, and agree with, the modern current of authority cited at the beginning of this opinion.
It is of course true, as is often pointed out, e.g., 67 Harv.L.Rev. 632, at 644, 696, that the power granted is very broad, and "literal application of the statute could lead to unjustified harshness." But Congress has attempted to meet this difficulty by granting a large measure of discretion to the administrator, originally the Secretary of Agriculture, later the Federal Security Administrator, and now the Secretary of Health, Education and Welfare. In addition to provisions not here immediately pertinent for regulations making certain exemptions or granting certain tolerances, 21 U.S.C. §§ 345, 346, there is a significant provision in the chapter authorizing penalties, injunctions, and seizures that nothing therein "shall be construed as requiring the Secretary to report for prosecution, or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice or warning." 21 U.S.C. § 336. Obviously the Congress considered such administrative control a wiser course than the hedging of power by various theoretical restrictions, the negativing of which might be difficult of proof in a particular case. And its wisdom is indicated in this very case, where the product is prepared for and sold in quantity distribution, in cans of "Net Contents 10 Lbs. About" of concentrated paste, thus indicating distribution to restaurants and institutions, where customers and inmates cannot easily, if at all, protest the serving of rotten tomato paste, unlike ordinary retail sales, where housewives do have some possible chance of protecting themselves against unwholesome products by buying first-grade articles at top prices.
Hence the district court was in error in its construction of the governing statute. There was further error in the holding that the government had a "very much heavier" burden of proof here than usual because of its first analysis which resulted in original clearance of the goods. D.C.E.D.N.Y., 111 F.Supp. 478, 480. We have held that in this class of cases the government has no extraordinary burden, but only the usual one of proof by a fair preponderance of the evidence. United States v. 5 Cases, More or Less, Containing "Figlia Mia Brand," 2 Cir., 179 F.2d 519, 524, certiorari denied Five Cases of Figlia Mia Brand of Oil v. United States, 339 U.S. 963, 70 S. Ct. 997, 94 L. Ed. 1372.Even if there were any basis for applying some rule of estoppel against government agencies in their enforcement of regulatory laws for the general welfare, there is nothing either in the grant of administrative favor or the then less compelling cast of the evidence - discussed below - to change this rule of law.
The order denying condemnation and releasing the goods to the claimant must therefore be reversed. And we think the state of the record is such that we should order judgment for the government, rather than remand for further trial. True, the district judge because of his rulings of law did not go on to make specific findings as to the degree of decomposition of the product. But the evidence was reasonably complete and upon it, taking it in favorable aspects to the claimant and even upon the testimony of his own expert, we think it clear, as a matter of law, ...