The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
The United States brought this action under the Food, Drug, and Cosmetic Act (the Act), 21 U.S.C. § 301 et seq, seeking the seizure, condemnation, and destruction of allegedly mislabeled and adulterated mushrooms and fish (spiced mud skipper) held in Brooklyn in the premises of Tai Wing Hong, Importer, Inc. (Tai Wing Hong) under a Customs bond. The court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355 and 21 U.S.C. § 334.
After commencement of the action Tai Wing Hong laid claim to the food. The government has moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure in order to condemn and destroy the food. Tai Wing Hong has cross-moved for partial summary judgment.
Tai Wing Hong concedes that both the mushrooms and the mud skipper are adulterated and misbranded. It does not contest condemnation and destruction of the mud skipper but seeks dismissal of the claim against the mushrooms and either an order to export or permission to export them to Hong Kong. The chief issue concerns whether or not the government may condemn the mushrooms.
The relevant facts are undisputed. In June 1994, Tai Wing Hong offered for admission into the United States three shipments of food products, including the mushrooms, imported from Hong Kong. The Customs Service (Customs) did not allow the goods into the United States but conditionally authorized delivery to Tai Wing Hong, to be held under a Customs bond pending inspection by the United States Food and Drug Administration (the Food and Drug Administration).
On several occasions between June 28 and August 9, 1994, inspectors from the Food and Drug Administration visited Tai Wing Hong's premises in Brooklyn and took samples from the three shipments.
At the warehouse an inspector noticed that there had been other labelling under the Taiwanese Dragon Seed labels on the mushroom containers. He also observed scraps of labels lying around the containers.
Analysis of the sampled mushrooms at the Food and Drug Administration's Center for Food Safety and Applied Nutrition revealed contamination with staphylococcal enterotoxin, which causes severe and sometimes fatal food poisoning. Inspection of the size of the cans and the nature of their codes and markings confirmed that they did not originate in Taiwan, as the labels claimed, but in the People's Republic of China.
During the summer of 1994, the Food and Drug Administration advised Tai Wing Hong that the food contained in its June shipments appeared to violate the Act and might therefore be refused admission. In August 1994, it issued Notices of Release for some products and Refusal for other products contained in the three shipments, but took no administrative actions as to the mushrooms and mud skipper. On October 24, 1994, Tai Wing Hong requested the release of the mushrooms for exportation.
On November 23, 1994 the United States Attorney commenced this action and obtained warrants of arrest for the mushrooms and the mud skipper, which were thereafter seized. The Government then made the motion for summary judgment.
Tai Wing Hong argues that since the mushrooms were not admitted into the United States the government may not condemn them but must ...