adulterated or misbranded. On the other hand under § 334 it is not enough that the goods so appear. Only if an offending article "is" misbranded or adulterated may the court order condemnation and the government must prove its case by a preponderance of the evidence.
Section 381 remains an effective remedy when the government believes the food is adulterated or misbranded, but cannot prove it. Moreover, even when the government can prove adulteration or misbranding, it may under § 381 allow exportation when it deems the products not to pose sufficient danger as to justify the expense of condemnation proceedings.
In arguing that § 334(a) gives the government no power to seize and condemn "imported articles" subject to "detention" Tai Wing Hong points to the provisions of § 334(d), which was enacted as a 1957 amendment to the Act.
The language of that subsection, summarized above, does not address, even by implication, the government's power to invoke § 334(a) to condemn food imported into the United States but detained at the port of entry. The manifest purpose of the amendment which became § 334(d) was to permit a court in its discretion to allow the reexportation of detained goods if the owner establishes certain conditions and even though the goods have been condemned.
It is true that the Congressional committees reporting on the bill that became the 1957 amendment evidently assumed at that time that § 334(a) and § 381 ordinarily applied in different circumstances, § 334(a) when the goods were seized in domestic commerce and § 381 when they were seized at the port of entry. See S. Rep. No. 993, tho Cong., 1st Sess. 1957, 1957 U.S.C.C.A.N. 1971. But the 1957 legislation did not enact the speculations in the Congressional reports. Cf. N.L.R.B. v. Health Care & Retirement Corp., U.S. , 114 S. Ct. 1778, 1784, 128 L. Ed. 2d 586 (1994) (in Congressional Reports proposing amendments statements as to existing legislation does not alter it or provide an "authoritative interpretation" of it). Still less did those reports adopt a retroactive amendment of the long existing provisions of § 334(a). See id. (such statements "do not have the 'force of law, for the Constitution is quite explicit about the procedure that Congress must follow in legislating.'") (citation omitted).
Tai Wing Hong suggests no reason in policy why the court should distort the plain language of § 334(a), adopted in 1938, to diminish the Act's protection of "the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self protection." United States v. Dotterweich, 320 U.S. 277, 280, 64 S. Ct. 134, 136, 88 L. Ed. 48 (1943).
The court holds that § 334(a) authorizes the court to order the condemnation of food imported from a foreign port and refused admission to the United States. The Court of Appeals for the Fifth Circuit in United States v. Food, 2998 Cases, 64 F.3d 984 (5th Cir. 1995), has reached the same result. But cf. 230 Boxes, More or Less, of Fish v. United States, 168 F.2d 361, 364 (6th Cir. 1948) (dicta that § 334(a) "is operative after the article is released from Customs and admitted into this country").
Tai Wing Hong says that even if the mushrooms were "introduced into" or were "in" commerce within the meaning of § 334(a), the court should in its discretion under § 334(d) allow reexport to the foreign supplier. That subsection, cited above, says that the court "may permit" the food to be released to the owner for reexportation "in lieu of condemnation" if the person seeking release establishes two conditions. The adulteration or misbranding must not have occurred after the importation and the person must have had no cause to believe it was adulterated or misbranded before release.
To be granted an opportunity to export, Tai Wing Hong must prove both that the adulteration or misbranding occurred before the mushrooms arrived in the United States and that it had no reason to believe that they were in such condition before their release from customs custody.
Tai Wing Hong has not met this burden. It offers the affidavit of its president that Tai Wing Hong did not affix new labels and that neither he nor his employees had reason to believe that the mushrooms were misbranded or adulterated. The government submits the affidavits of its inspectors stating that they discovered evidence that the mislabeling occurred at Tai Wing Hong's warehouse under bond. This suggests that the mushrooms were misbranded after importation.
Even if Tai Wing Hong could satisfy the conditions of § 334(d), the court would not exercise its discretion to permit reexportation.
The mushrooms, contaminated with possibly deadly staphylococcus enterotoxin, could only be sanitized through a process that would probably render them inedible. Tai Wing Hong's supplier would thus have little incentive to attempt to recondition them and might try to relabel and return them undetected to the United States. Indeed, if Tai Wing Hong is an innocent importer, its supplier initially misbranded the mushrooms and might do so again. The court will not create the risk to health and possibly life that release would create.
The government's motion for summary judgment is granted, and Tai Wing Hong's cross-motion for partial summary judgment is denied.
Dated: Brooklyn, New York
December 20, 1995
Eugene H. Nickerson, U.S.D.J.
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