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September 28, 1979

UNITED STATES OF AMERICA, Plaintiff, against AN ARTICLE OF FOOD CONSISTING OF 12 BARRELS, MORE OR LESS, LABELED IN PART: (Barrel) Lumpfish Roe 100 Kg Net Colored Black, Defendant.

The opinion of the court was delivered by: BRIEANT


Plaintiff in this action, the United States of America, seized 12 barrels of lumpfish roe, referred to during the trial as "caviar," pursuant to the provisions of the Federal Food, Drug and Cosmetic Act (hereinafter "the Act"), 21 U.S.C. § 334. The complaint, filed July 10, 1978, alleges that the seized lumpfish roe constitutes an adulterated food held for sale after shipment in interstate commerce within the meaning of the Act, 21 U.S.C. § 342(c), in that it bears and contains a color additive, FD&C Red No. 2 (hereinafter "Red # 2"). Iranian Caviar and Sturgeon Corporation (hereinafter "claimant" or "Iranian Caviar Corp.") intervened in the action and filed a claim to the seized lumpfish roe. The case was tried before me without a jury on June 15 and July 3, 1979.

 The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355 and 21 U.S.C. § 334.

 The Iranian Caviar Corp. processes and distributes lumpfish roe for sale to delicatessens and others. On July 10, 1977 it received a shipment of 20 barrels of lumpfish roe. This shipment was first transported from Bergen, Norway to the United States, arriving July 4, 1977. The 20 barrels were then moved from Newark, New Jersey to Edison, New Jersey and finally to New York City, where they remained in refrigerated storage for approximately one year at the premises of Iranian Caviar Corp. in this District.

 On May 5, 1978, a Food and Drug Administration (hereinafter "FDA") inspector entered the Iranian Caviar Corp.'s premises for the purpose of conducting a scheduled routine inspection. While inspecting the plant, the inspector discovered a container labelled "Black Shade," which listed several ingredients, including Red # 2. The inspector also discovered several large wooden barrels in a refrigerator that were marked in part " * * * LUMPFISH ROE 100 KG NET * * *." Affixed to a number of these barrels were white tags with the words "colored black" and a date. Samples were taken from five of these barrels, and photographs were taken of the container labelled "Black Shade" and also the barrels with white tags.

 Although it is unclear from the testimony at trial, FDA chemists apparently discerned the presence of Red # 2 in the samples taken from the five wooden barrels and the "Black Shade" container. On the basis of this analysis, the FDA obtained a warrant from the Clerk of this Court for the arrest of 12 barrels labelled in part " * * * LUMPFISH ROE 100 KG NET * * * COLORED BLACK * * *," pursuant to Rule C of the Supplemental Rules for Admiralty and Maritime Claims. See 28 U.S.C. § 2461(b) and 21 U.S.C. § 334(b). They also obtained a warrant for inspection of the Iranian Caviar Corp.'s premises. The warrant for inspection was issued on July 17, 1978 after submission of papers regular on their face filed by FDA Agent Ellen Herr. On the same day, an FDA agent and two United States Marshals "seized" 12 barrels containing lumpfish roe in an Iranian Caviar Corp. refrigerator. They did so by attaching the arrest warrant to one of the barrels. Nine days later, on July 26th, the agent and marshals returned with a truckman to remove the barrels that they had seized. The arrest warrant was no longer attached to any of the barrels, and there was some confusion over which barrels to remove. As a result, a number of barrels were opened, and the FDA agent identified those that were colored and those that were not. In all, 12 barrels of lumpfish roe were removed to the Merchant's Refrigerating Company, a private warehouse company which stored the roe on behalf of the United States Marshal of this District.

 A second analysis of the 12 seized barrels was performed at the request of claimant by Fitelson Laboratories, Inc., a private testing laboratory. On November 9, 1978, samples were taken from three of the twelve barrels, and Red # 2 was found to be present in all three. The nine remaining barrels were sampled by Fitelson Laboratories on March 1, 1979, and Red # 2 was discerned in eight of the nine barrels.

 The Government brings this action under § 304(a) of the Act, as amended, 21 U.S.C. § 334(a)(1), which provides in pertinent part:

"Any article of food . . . that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce . . . shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States or United States court of a Territory within the jurisdiction of which the article is found."

 Therefore, to establish a Prima facie case that this section was violated, the Government must prove by a preponderance of the evidence that the lumpfish roe contained in the 12 seized barrels was "food" that travelled in "interstate commerce," and that this food was "adulterated" when introduced into, while in, or while held for sale after, shipment in interstate commerce. See, United States v. 449 Cases, containing "Tomato Paste," 212 F.2d 567 (2d Cir. 1954).

 For purposes of the Act, food is defined in part in 21 U.S.C. § 321(f) as "articles used for food or drink for man or other animals." The lumpfish roe involved here falls within this definition, and testimony of claimant's principal officer concedes that this lumpfish roe was food intended to be sold as a caviar substitute. (Tr. 7/3/79, pp. 9-10). Therefore I find that the 12 barrels seized in this case contained food within the meaning of the Act.

 Interstate commerce is defined by the Act as, Inter alia, "commerce between any state or territory and any place outside thereof." 21 U.S.C. § 321(b). The 12 barrels sought to be condemned were shipped from Norway to the United States, and after clearing customs in New Jersey, were transported into New York. In New York, the lumpfish roe was being held by the Iranian Caviar Corp. pending its eventual sale in the United States or Canada. These facts are undisputed (Tr. 7/3/79, pp. 7-10), and therefore I find that the 12 barrels were held for sale after shipment in interstate commerce, as defined by the Act.

 The remaining question is whether the lumpfish roe was adulterated before, during or after shipment in interstate commerce. 21 U.S.C. § 342(c) provides that "(a) food shall be deemed adulterated (under the Act) if it . . . bears or contains a color additive which is unsafe within the meaning of § 376(a) of this title." 21 U.S.C. § 376(a) provides in relevant part:

"A color additive shall, with respect to any particular use (for which it is being used or intended to be used or is represented as suitable) in or on food . . . be deemed unsafe for the purposes of the ...

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