11860. Misbranding: and alleged adulteration of canned salmon. IT. S. -v. 
200 Cases and 200 Cases of Canned Salmon. Tried to the court 
?without a jury. Judgment of condemnation and forfeiture with 
provision for release under bond. Claimant failed to execute 
bond and product was destroyed. (F. & D. Nos. 15941, 15942. I. S. 
Nos. 18222-t, 18223-t.    S. No. C-3410.)
On January 28, 1922, the United States attorney for the Southern District 
of Texas, acting upon a report by the Secretary of Agriculture, filed in the 
District Court of the United States for said district libels, and thereafter 
amended libels, praying the seizure and condemnation of 400 cases of canned 
salmon, in part at Galveston and in part at Houston, Tex., alleging that the 
article had been shipped by the Seaboard Co., Seattle, Wash., on or about 
November 16, 1921, and transported from the State of Washington into the 
State of Texas, and charging adulteration and misbranding in violation of the 
Food and Drugs Act The article was labeled in part: (Can) "Kay-Square 
Brand * * * Pink Salmon * * * Keen-Eye Inspection Fresh Fish 
Clean Canneries * * * Inspected * * * Kenai Packing Co. Seattle, 
Wash."
Adulteration of the article was alleged in the libels as amended for the 
reason that it consisted wholly or in part of a filthy, decomposed, and putrid 
animal substance.
Misbranding was alleged for the reason that the statements appearing in 
the labels, " Inspected" and " Keen-Eye Inspection Fresh Fish," were false 
and misleading and deceived and misled the purchaser.
On March 30, 1923, the cases came on for trial before the court without a 
jury. After the submission of evidence and arguments by counsel the court 
took the matter under advisement, and on April 5, 1923, handed down the 
following memorandum opinion (Hutcheson, jr., D. J.) :
" These two cases are proceedings under separate numbers against two lots 
of salmon, one originally libeled in Galveston and proceeded against in Galves- 
ton under the Galveston number, D. L. 724, later transferred to Houston; the 
other libeled against in Houston and proceeded against in Houston under 
D. L. No. 419.
" The Government contends for condemnation and forfeiture on the ground 
(1) that the articles are misbranded and (2) that they are adulterated, in that 
they consist wholly or in part of filthy, decomposed, and putrid animal sub- 
stance, in violation of paragraphs 6 and 7 of the Food and Drugs Act of 1906.
" In each of these cases the Seaboard Company appeared as claimant and filed 
exceptions and answer, and under orders of the court by agreement between the 
parties from time to time samples of the seized shipments were taken and 
examined.
" Not until the trial had concluded was any point made as to the right of 
the claimant to appear and claim, and at that time the Government's counsel 
made the contention that the interest of the claimant was not shown.
"This motion, if it ever was meritorious, comes too late. (United States v. 
46 Packages, 183 Fed. 644.)
" Each can had on it a pinkish red label showing a picture in relief of a 
salmon, under it the words, ' Select Pink Salmon,' by the side of the picture 
the following, ' Keen-Eye Inspection Fresh Fish Clean Canneries,' and this 
was in white lettering. In black letters, to simulate a stamp, was the word 
* Inspected.'
" The evidence on the part of the Government was that this product was not 
Government inspected, and that if the stamp was intended to make the im- 
pression of Government inspection, it was false.
" The evidence of the Government was also overwhelming that the fish was 
not fresh fish in the sense of that term as used in the canning trade, that is, 
fish canned when they had been on the floor not over forty-eight hours-which 
was the time limit fixed by the Government witness and not contradicted- 
within which fish could be said to be fresh.
" The testimony was also overwhelming that the fish, if not putrid or rotten, 
was a poor and therefore not a select pack of pink salmon, for while pink 
salmon is according to the testimony one of the inferior brands, it varies in 
quality according to the freshness and general character of the fish put up.
" It is therefore clear to me that the articles seized have offended against 
the misbranding statute, one purpose of which is to protect purchasers from 
injury from the sale of inferior for superior articles (Hall v. Baker, 198 Fed. 
615; United States v. 150 Cases, 211 Fed. 361), and that deception being present 
and that ground of forfeiture clearly existing, it would, but for the provisions 
of section 8726 authorizing the court to direct the delivery of the articles to 
the owner, be unnecessary for the court to pass at all upon the question of 
whether, as to any part of the shipment, the Government has made a case on 
its second ground.
"Upon the issue of whether the product was filthy, decomposed, or putrid, 
the evidence was in sharp conflict.
" I agree with the Government that it is not essential under this subdivi- 
sion of section 7 to establish that the articles were unfit for food, or deleteri- 
ous if eaten. It is sufficient if the Government establishes that the article 
sought to be condemned was composed in whole or in part of decomposed, 
filthy, or putrid animal substance. That the contents of some of the cans con- 
tained in the shipments under seizure were of the character described in the 
Government's libel, I have no doubt.
" That a great many of them were not, the Government's own testimony 
established, for taking the method of testing by sample which the Government 
itself claims to be fairly correct, they reached the conclusion that something 
like 18 per cent of the seizure was filthy, putrid, and decomposed, leaving 82 
per cent not within the terms of the second ground of their libel, while the 
claimant's witnesses testified to having made chemical tests of some of the 
samples, finding no evidence of decomposition, and also to having experimented 
by serving some of the contents of the cans as food without harmful result. 
" It is the claimant's contention that the test applied by the Government of 
smelling is insufficiently certain to justify condemnation and that even the 
percentage of defectives testified to by the Government has not in fact been 
shown, but they claim further that conceding as much defective fish as the 
Government's witnesses contended for, that the Government has not made a 
case for the condemnation of cans not already tested and proved to be bad.
" That, in short, it is encumbent upon the Government to either prove that 
they have examined each can and found it defective or that they have estab- 
lished such regularity of defects as to support the inference that all the cans 
are defective.
" The Government relies for the contrary of this upon the opinion of the 
Circuit Court of Appeals of the United States, in U. S. v. A. O. Anderson, an 
opinion from the Ninth Circuit (284 Fed. 542), in which the circuit court de- 
clared that the ' article' referred to in the condemnation statute did not mean 
the single or individual can of salmon but was used generically as referring 
to the entire salmon shipment under seizure as one thing, and that if the Gov- 
ernment proved that one-fifth of the entire product was unfit for human con- 
sumption, it would be competent for the jury to infer from that that the bal- 
ance was also.
" To these conclusions I am not prepared to lend my adherence. I concede 
the force of the reasoning that in section 8726 the language, ' any article of 
food, drug, or liquor,' if standing alone, might well have a generic meaning as 
relating to the character of the shipment, whether salmon or pork or beans 
or what not, and that it may well be said to be a case of using the word 
' article' as a singular plural, or a plural singular. However, in the caption 
of the act the plural is used, and in the body of the act it is provided that 
* upon the payment of [the] costs * * * and the execution and delivery of 
a good and sufficient bond to the effect that such articles shall not be sold,' 
they may be delivered.
"Again, in the discussion of similar words in other places in the statute, the 
Supreme Court has seemed to take a different view from that expressed in 
the Anderson case. In Hippolite Egg Co. v. United States (220 U. S. 52) the 
court treats the ' articles' as the contents of packages designed for food and 
discusses the question of original packages as applied to the original box 
in which" they come shipped, as distinguished from the can or package con- 
taining the food itself, and in the discussion makes it clear that they treat 
the word * article' as the food itself contained in the package designed for 
delivery to the consumer.
" In Hoke v. United States (227 U. S. 323) the court said, ' In the Hippolite 
Egg Co. case we denominated adulterated articles as " outlaws of commerce.'"'
"In McDermott v. United States (228 U. S. 130) the court showed clearly 
that it considered that the word 'article' referred to the adulterated thing 
itself, rather than the package or case in which it came in shipment.
"Again, if the reasoning in the Anderson case is accepted, and the word 
' article' is to be taken generically, still the conclusion reached in that opinion, 
does not follow, that proof that of the cans examined one-fifth were bad 
and four-fifths were good would authorize the jury to find the whole product 
bad. It might well be as in the oyster case (Notice of Judgment 4922)t 
opinion by Judge Hand, that where only a part of the shipment was examined, 
and that part ran uniformly bad, the jury would be authorized to find, if that 
was a fair sample, that it indicated that the whole shipment was bad; but 
it would not at all follow, but rather the contrary, that if a shipment was 
examined, and the examination showed as it proceeded that one-fifth was 
bad and four-fifths good, that the court could order the whole product con- 
demned.
" The case, in short, is not one where the Government has proven a part 
of it bad as a basis for the inference that all was bad, but one in which the 
very proof of the Government establishes that part of it is not bad within 
the meaning of the statute, and I am inclined to think that if the Government 
depended for its condemnation upon subdivision 6 of section 7 of the act, 
in accordance with the general rule of law that the burden is upon the 
Government to prove its case, the Government would have to be cast in this 
suit or would have to take the alternative of examining and testing every can 
of the shipment.
" Since, however, the goods* are to be condemned for misbranding, the 
court now makes it known that it is of the opinion that some part of the ship- 
ment is bad, and that the goods will not be released under bond to the owner 
merely for rebranding but only upon condition that the goods be reexamined 
and reclassed, the good being separated from the bad.
" Since it is not known whether any application for the withdrawal of the 
goods will be made, it is sufficient now to direct that a judgment of condemna- 
tion and forfeiture be entered."
On July 3, 1923, a decree of the court was entered adjudging the product 
to be misbranded and ordering its condemnation, and it was further ordered 
that the product might be released to the claimants, the Seaboard Co. and 
Rush Este, upon the execution within ten days from the entry of the decree 
of a good and sufficient bond, conditioned upon the separation by the claim- 
ants of the good from the bad portion of the product, otherwise, that it be de- 
stroyed. Subsequently, the claimants having failed to furnish bond as re- 
quired by the said decree, the product was destroyed by the United States, 
marshal.
HOWARD M. GOEE, Acting Secretary of Agriculture.