20810.  Adulteration of  tulllbees.   IT.   S.  v.  288   Boxes,  186  Boxes,  and   116
Boxes  of Tullibees.     Tried to the court, sitting; as a jury of one.
Directed  verdict   for  the   Government.     Product   condemned   and
destroyed.     (F. & D. nos. 26871, 26877.    I.  S. nos. 29036,  29037.    S. nos.
.5062, 5071.)
These cases involved certain lots of tullibees imported from Manitoba, Canada. 
Examination showed that a large proportion of the fish were infested with 
worms imbedded in the flesh, enclosed in a cyst.
On August 13 and August 14, 1931, the United States attorney for the South- 
ern District of New York, acting upon reports by the Secretary of Agriculture,
filed in the District Court of the United States libels praying seizure and con- 
demnation of 590 boxes of tullibees at New York, N.Y., alleging that the article 
had been shipped in two consignments, on or about July 31 and August 3, 1931, 
respectively, by the Manitoba Cold Storage Co., from Winnipeg, Manitoba, into 
the State of New York, and charging adulteration in violation of the Food and 
Drugs Act.
The libels alleged that the article was adulterated in that it consisted wholly 
or partly of a filthy, decomposed, or putrid animal substance, and in that it 
consisted of portions of animals unfit for food.
On November 28, 1931, Sigurd V. Sigurdson, New York, N.Y., appeared as 
claimant for the property and filed answers denying the adulteration charge. 
On January 12, 1933, the two cases were consolidated and the evidence on 
behalf of the Government and claimant was submitted to the court, sitting as a 
jury of one. At the conclusion of the testimony and the arguments of counsel, 
both the Government and claimant moved for a directed verdict. The case was 
adjourned for submission of briefs in support of the motions and having come 
on for hearing on February 21, 1933, the Government's motion was granted in 
the following memorandum opinion (F. J. Coleman, J.):
" Without repeating the statement of specific facts made by the court at the 
close of the trial, the question presented is whether under the Food and Drugs 
Act of June 30, 1906 (21 U.S.C, sees. 1 to 15), raw fish infested with parasitic 
worms should be condemned and forfeited in the absence of proof that the 
parasites would be injurious to the consumer or would impair the taste of the 
fish, but where it appears that an ordinary person would have a strong, revulsion 
against eating such fish if aware of the presence of the worms, and where it 
further appears that only an experienced person would discover them. The 
worms themselves are threadlike structures difficult to identify, but they are 
surrounded by a quantity of thick, greenish yellow fluid unpleasantly sugges- 
tive of pus, which consists of broken-down fish tissue and to some extent the 
excreta of the worms. This fluid would readily be observable by anyone eating 
the fish; but unless he knew its origin, it would probably be unobjectionable. 
"The Food and Drugs Act (title 21, U.S.C.) bans adulterated foods in for- 
eign and interstate commerce and section 8, subdivision 6, provides that food 
shall be deemed adulterated ' If it consists in whole or in part of a filthy, de- 
composed, or putrid animal or vegetable substance or any portion of an animal 
unfit for food whether manufactured or not, if it is the product of a diseased 
animal or one that has died otherwise than by slaughter.'
"It seems to me that the fish in question come within the scope of that 
subdivision and are not excluded by the absence of proof that their condition 
would impair the health of the consumer or the flavor of the fish. The sub- 
division does not expressly prescribe such requisite and the courts have held 
that it does not imply one (Knapp v. Callaway, 52 Fed. (2d) 476; A. 0. Anderson 
& Co. v. U.8., 284 Fed. 542). While the statute is primarily concerned with the 
health of the consumers, it might well ban 'filthy' or 'decomposed' animal 
matter or the * product of a diseased animal' without direct or scientific proof 
of danger to health. The aesthetic guide frequently precedes the scientific one 
and the Government might wisely ban food which runs counter to it in the 
categories mentioned.
"The fact that most consumers would not discover the worms and would, 
therefore, not have their feelings affruited is of no consequence because were 
it otherwise, the statute would not be needed. The statute is largely intended 
to protect those consumers who would not be in a position to observe the defect 
in the food.
" Verdict is directed for the Government.    Settle order on notice." 
On March 1,1933, judgment was entered condemning the product and ordering 
that it be destroyed by the United States marshal.
R. G. TTJGWEIX, Acting Secretary of Agriculture.