3721. Alleged Adulteration of canned oysters.     U.  S. v.  1,232 Cases of Canned
Oysters.    Tried to the court.    Decree entered ordering case dismissed 
and product restored to claimant.    (F. D. C: No. 4943.   Sample No. 49209-E.)
On June 16, 1941, the United States attorney for the Western District of 
Missouri filed a libel against 1,232 cases, each containing 24 5-ounce cans, of 
oysters at Kansas City, Mo., alleging that the article had been shipped in 
interstate commerce on or about June 3, 1941, by the Anticich Canning Co. 
from Biloxi, Miss.; and charging that it was adulterated. The article was 
labeled in part: "American Beauty Brand Oysters."
It was alleged to be adulterated (1) in that it contained added deleterious 
substances, shell fragments, which might have rendered it injurious to health; 
(2) in that an article containing shell fragments had been substituted wholly or 
in part for oysters; and (3) in that shell fragments had been mixed or packed 
therewith so as to reduce its quality.
The Anticich Canning Co. appeared as claimant and filed a motion for the 
removal of the case to the Southern District of Mississippi. The motion was 
argued September 15, 1941, and was overruled by the court without opinion. 
On October 29, 1941, the case came on for trial before the court without a jury. 
At the conclusion of the Government's case, the claimant moved the court to 
exclude the evidence offered on behalf of the Government and find for the de- 
fendant. The court announced that it would reserve ruling on the motion until 
the claimant's evidence was completed. On October 80, 1941, the taking of 
testimony having been concluded, the case was taken under advisement by the 
court, and on February 28, 1942, the court handed down the following memoran- 
dum opinion:
REEVES, District Judge.   "This is a proceeding by the process of libel to con 
demn an alleged adultered food product.    Such food consists of 1,232 cases of 
oysters, each case containing 24 cans marked 'American Beauty Brand Oysters.'
"As a basis for condemnation, it is alleged by the Government that said article 
'contains shell fragments, many of them small enough to be swallowed and 
become lodged in the esophagus, and that said shell fragments are sharp and 
capable of inflicting injury in the mouth.'
"The provision of the law invoked by the Government is section 342, Title 
\21 U. S. C. A., and sundry subdivisions thereof. Said section provides, among 
other things that:
A food shall be deemed to be adulterated—(a) (1) If it bears or contain any poisonous 
or deleterious substance which may render it injurious to health; but in case the sub- 
stance is not an added substance such food shall not be considered adulterated under this 
clause if the quantity of such substance in such food does not ordinarily render it insurious 
to health.
"The claimant appeared to deny the averments of the libel and assert owner- 
ship of the product. The evidence in the case showed that in the processing of 
oysters for food there is a constant effort to eliminate shells and fragments 
thereof from the product. For this purpose many means and devices are used to 
reduce as nearly to a minimum as possible such shells and fragments in the 
product The evidence, however, on behalf of both the Government and the 
defense was that with present known means and devices it was impossible to 
free the product entirely from the presence of part shells and shell fragments. 
Moreover, it not only appeared, but it is a matter of common knowledge, that 
an oyster is a marine bivalve modus with a rough and an irregular shell , 
wherein it develops and grows, and that, in the processing of the food product, 
it is necessary to remove this irregular, rough shell so far as that may be 
accomplished. The shells, therefore, are not artificially added for the purpose 
of growth or to aid in the processing operations.
"The evidence on the part of the Government was that parts of shell and 
shell fragments upon inspection were found in many of the cans taken from the 
article seized.   Such parts of shell and fragments were exhibited at the trial.
"There was evidence on behalf of the claimant that its processing operations 
were, in accord with the best manufacturing practice and there was even some 
testimony that the means employed by it for the elimination of shell fragments 
were superior to the means employed by other processors engaged in similar 
operations. The testimony on the part of the claimant further tended to show 
that within the Kansas City area over a period of 10 years it had sold approxi- 
mately 5 million cans of its product and that no complaint had ever been made 
concerning the presence of shell fragments. Claimant also proved that over 
50 million cans had been processed by it and distributed in its trade territory 
and that no complaints had ever been made of the presence of part shells or shell 
fragments.
"It seems proper at this point to comment that in this case involving con- 
siderable testimony there was no substantial controversy as to the facts and 
practically no difference of opinion as to the law. There was a contention by the 
Government that the shells as a deleterious substance were added to the product 
while being processed.   There was no evidence to support this contention.
"1. The excerpt from the statute heretofore quoted contemplates that there 
may be of necessity food products containing deleterious substances. No one 
who has had the experience of eating either fish or oysters is unfamiliar with 
the presence of bones in the fish (a deleterious substance) and fragments of 
shell in the oysters (also a deleterious substance).
"The Congress, however, withdrew such foods, from the adulterated class 'if 
the quantity of such substance in such food does not ordinarily render it in- 
jurious to health.'
"The evidence on both sides was that by the greatest effort, and in the use 
of the most modern means and devices shell fragments could not be entirely 
separated from an oyster food product. The Government, in its brief, quite aptly 
and concisely stated its point by using the following language:
It is the character, not the quantity of this substance that controls its ability to injure.
This concession on the part of the Government, properly made, upon the evidence 
removes the case immediately from that portion of the statute which says:
* * * such food shall not be considered adulterated under this clause if the 
quantity of such substance in such food does not ordinarily render it injurious to health.
Since it is the 'character, not the quantity of this substance that controls its 
ability to injure,' as stated by the Government, then in the view that it is im- 
possible to eliminate shell fragments in toto from the product, the use of oysters 
as a food must be entirely prohibited or it must be found that the presence of 
shell fragments is not a deleterious substance within the meaning of the law 
and must be tolerated. To reject oyster products as a food is unthinkable. It 
would be as reasonable to reject fish because of the presence of bones.
"Even if a greater percentage of shells and shell fragments were found in 
claimant's product than in that of other processors, yet this fact, under the 
theory of the Government, would not add to the deleterious nature of claimant's i 
product. It should be stated, however, that there was no evidence that there 
was an excess of shell fragments in claimant's product over that of other proc- 
essors. On the contrary, a preponderance of the evidence showed that the 
claimant's processing methods were superior.
"2. It does not seem necessary to discuss other portions of said section 342 
invoked by the Government. It is charged in the libel complaint that other 
provisions of the statute were violated by substituting shell fragments for 
oysters, and that shell fragments had been mixed or packed with the oyster 
product so as to reduce its quality. There was no testimony to support these 
averments and so as to make applicable those provisions of the law directed 
against such acts.
"3. Counsel for both the Government and the claimant, at the trial and in 
their briefs, discussed the question of the right to a tolerance regulation as 
provided by section 346, title 21, U. S. C. A.   This provision is for tolerance 
of both poisonous and deleterious substances where the presence of such sub- 
stance cannot be avoided.   However, that section says:
(a) Any poisonous or deleterious substance added to any food, except where such sub- 
stance is required in the production thereof or cannot be avoided by good manufacturing 
practices of the application of clause (2) of section 342 (a).
Adverting to clause 2 of said section 342 (a), it reads as follows-:.
* f * or (2) if it [food] bears or contains any added poisonous-or added deleterious 
substance which is unsafe within the meaning of section 346.
"It will be seen at once that this provision does not apply where the dele- 
terious substance inheres in the product and is not added. Further quoting 
from section 346, however, note this language:
*???* * but when such substance is so required or cannot be so avoided, the Administra- 
tor shall promulgate regulations limiting the quantity therein or thereon to such extent 
as he finds necessary for the protection of public health.
"Upon the concession made by the Government in this case, even if the 
tolerance section could be construed to apply, it is not the quantity of the 
substance but its character 'that controls its ability to injure.'
"4. Upon the evidence in the case it must be found that the presence of 
shell fragments in the article sought to be condemned does not ordinarily 
render it injurious to health.
"Under the statute and upon the evidence the Government is not authorized to 
condemn the article seized for the reason that the processed article does not 
offend against the food and drug law. The claimant, therefore, should have 
restored to it the articles seized and the libel should be dismissed. It will be 
so ordered."
On March 6, 1942, judgment was entered dismissing the case and ordering 
the goods restored to the claimant.