19023. Adulteration of canned  tuna.    IT.  S.  v.  620  Cases  of  Canned Tuna.
Tried to the court. Judgment for the Government. Decree of 
condemnation, forfeiture, and destruction. (F. & D. No. 26364. I. S. 
No. 12424.    S. No. 4700.)
Samples of canned tuna from the shipment herein described having been found 
to be decomposed, the Secretary of Agriculture reported the matter to the 
United States attorney for the Western District of Washington.
On May 14, 1931, the United States attorney filed in the District Court of the 
United States for the district aforesaid a libel praying seizure and condemna- 
tion of 620 cases of canned tuna, remaining in the original unbroken packages 
at Seattle, Wash., alleging that the article had been shipped by the California 
Sea Food Co., Los Angeles, Calif., on or about April 17, 1931, and had been 
transported from the State of California into the State of Washington, and 
charging adulteration in violation of the food and drugs act. The article was 
labeled in part: (Can) "Tuna for Pets Not Intended for Human Consump- 
tion   *    *    *    Calif ornia Packing Corporation   *   *    *    San Francisco, Calif."
It was alleged in the libel that the article was adulterated in that it con- 
sisted in whole or in part of a decomposed animal substance.
On June 9, 1931, Morris Muskatel, Seattle, Wash., entered an appearance 
in the case and filed a claim and answer to the libel. On July 29, 1931, the case 
having come on for trial before the court, evidence was introduced on behalf
of the Government and the claimant. On August 25, 1981, the court handed 
down the following memorandum decision (Neterer, J.) :
" Libelant seeks to condemn 620 cases of canned tuna, labeled ' Tuna for pets 
not intended for human consumption * * *.' The libelant's expert testified 
that he examined 96 cans in San Francisco of the quantity in issue by opening 
the cans, testing the contents for firmness, and smelling to determine the con- 
dition ; that 21 per cent were in advanced stage of decomposition, the remain- 
ing were in satisfactory condition. At trial 12 cans were opened, selected at 
random. One was shown to be decomposed by the same test. The same stand- 
ards were applied as applied to tuna consigned for human consumption. The 
claimant's expert at trial agreed with libelant's witness that the cans examined 
at trial, one of which was condemned, were not in a state of decomposition; 
but he stated that the condemned can is fit for the purposes for which it was 
intended, and that he had fed a number of like cans to his own cat, and the 
?cat thrived.
" From all the evidence presented the conclusion is inevitable that some of 
the canned product was decomposed and others tainted. 21 per cent of the 96 
<?ans examined were somewhat decomposed, and that between 8 and 9 per cent 
of the remaining portion was tainted to the extent that it was susceptible to 
smell, making practically one-third of the product open to criticism and im- 
posing upon the public a canned product, of which one-third was unsound.
" The act is broad in its provision, and section 6 provides the term ' food,' as 
used, shall include food for man or other animals. The intent of the act, no 
doubt, was to prevent imposition of fraud upon the public by canning and com- 
mercializing a product which was decomposed and not in a healthy, normal 
condition. The provisions of the act are broader than its title, which shows the 
object to be against adulterated, misbranded, poisonous, and deleterious food, 
drugs, etc. The act, no <loubt, was primarily in the interest of humanity and 
against fraudulent practices.
"The product by its label, presumably, is for dogs and cats. As to that, 
however, there is no evidence. The same standard of test was applied as for 
human consumption. Common sense enters into and becomes a part of every 
law, in the absence of explicit enactment. The same standard-test and strict- 
ness-applied to food for human consumption may not be applied to food 
branded for animals other than man-' Man, the autocrat among animals'- 
Heine. ' Man,' said Thomas Browne, ' is a noble animal, splendid in ashes, and 
pompous in the grave. A dog is never offended at being pelted with bones,' 
although a man's best friend is his dog, who often has more trouble to get food 
than to digest it. The old maxim, ' Who will not feed cats must feed mice and 
rats,' may be contemplated. But with all considerations and tests, there" are 
other pets than dogs and cats, and in view of the broad scope of the act and 
of the large percentage of decomposed and tainted commodity (practically one- 
third), the seizure is confirmed, and an order of condemnation is directed."
On November 4, 1931, judgment of condemnation and forfeiture was entered, 
and it was ordered by the court that the product be destroyed by the United 
States marshal, and that the claimant pay costs.
ARTHUE M. HYDE, Secretary of Agriculture.