3761. Adulteration of tomato paste.    IT. S, v. 1,375 Cases of Tomato Paste.    Tried
to the court. Judgment for the Government. Decree of condemnation 
entered and product ordered released under bond for segregation and 
destruction of decomposed portion. (F; D. C. No. 1816. Sample No. 
92046-D.)
On April 16, 1940, the United States attorney for the District of Connecticut 
filed a libel against 1,375 cases, each containing 100 cans of tomato paste, at 
New Haven, Conn., alleging that the article had been shipped in interstate 
commerce on or about February 3, 1940, by Aron Canning Co. from Stockton., 
Calif.; and charging that it was adulterated in that it consisted in whole or 
in part of a decomposed substance. The article was labeled in part: "Atrani 
Brand Tomato Paste * .* * Net Weight 6 Oz. Avoir. Packed in California 
for Perrelli Bros. New Haven, Conn."
517225°—43 5
On March ;;25, 1941, Aron Hershel, trading as the Aron Canning Go,, having 
appeared as. claimant, and a jury, having been waived, the case came on,; for 
trial before the court. The trial was concluded on March 27, 1941, whereiipon 
the court made tentative findings of fact and conclusions of law and ordered 
that both sides submit briefs.
: On January 14, 1942, the court handed down the following opinion sustaining 
the Government: 
t
HINCKS, Circuit Judge. "The Federal Food, Drug and Cosmetic Act of 1938 
(52 Stat 1040, 21 U. S. C. A. 342) classified food as 'adulterated,' and hence 
subject to condemnation if shipped in interstate commerce under 21 U. S. C. A. 
334, 'if it consists in whole or in part of any filthy, putrid, or decomposed 
substance, or if it is otherwise unfit for food.' . The only issue of law raised 
in this case is whether under this provision of the act the Government is 
entitled to a decree upon proof of a substantial amount of decomposed matter 
in the shipment, or whether it must also prove that the product was unfit for 
food.
"The claimant contends that the elause 'or if it is otherwise unfit for food' 
modifies the preceding class of substances; that the use of the phrase 'otherwise 
unfit for food- necessarily imports that the class of decomposed substances 
which is subject to condemnation,must also, within the legislative intent, be 
unfit for food. 
,
"With this I cannot agree. The whole subject matter of this subdivision of 
the statute is covered by two coordinate 'if clauses, and the second 'if indi- 
cates plainly that the second clause introduced thereby is coordinate and inde-: 
pendent rather than a qualification of the antecedent clause. The first clause 
plainly banned all products composed in whole or in part of any decomposed 
substance, and the second clause went on to add to the ban substances which 
were unfit for food for any other reason.
"To be sure, the other subdivisions of section 342 (a) specify as characteris- 
tics of the banned products that they shall be 'deleterious,' 'injurious to health,' 
or 'the product of diseased animals,' etc. These specified characteristics thus 
became essential prerequisites to be proved in cases brought under these sub- 
divisions of the act. But in the first clause of subdivision (3) of section 342 
(a) the sweeping ban of products consisting in whole or in part of any decom- 
posed substance imports a Congressional finding that the presence of any 
substantial amount of rot in any food product is at least a sign of danger 
which alone justifies the exclusion of the product from unrestricted circulation 
in interstate commerce. That being so, proof that the product is actually unfit 
for food is no part of the Government's case in a prosecution under section 
342 (a) (3). And there is no question here that the classification of the 
act has a reasonable relation to its objective, or that the objective was a proper 
one. For the claimant does not attack the validity of the statute; it raises 
only the question of its proper construction.
"If there can be any doubt as to the prdpriety of my conclusion, the doubt is 
set at rest by the history of this legislation. The Food and Drugs Act of 1906 
,(34 Stat 769, 21 U. S...C.-A. Sec. 8) by subdivision 6 of section 8 subjected to 
condemnation products consisting 'in whole or in part of a filthy, decomposed, OT 
putrid animal or vegetable substance, or any portion of an auimal unfit for 
food, whether manufactured or not, or if it is the product of a diseased animal, 
or one that has died otherwise than by slaughter.'   ,
"Under this act the courts have consistently decreed the condemnation of de- 
composed substances without proof of any injurious effect upon health. U. 8. v. 
188 Cases of Tomato Paste, 22 Fed. Supp. 515; Knapp v. Callaway, 52 Fed. (2nd) 
476; U. 8. v. Krumm, 269 Fed. 848; A. 0. Andersen & Co. v. TJ. 8. 284 Fed. 542; 
U. fif.-y. 200 Cases of,Canned Salmon, 289 Fed. 157; U. S. v. 200 Cases of Catsup, 
211 Fed. 780. These cases are not at all inconsistent with the observation fre- 
quently made (e. g., U. 8. v. Lexington Mill & Elevator Co., 232 tJ. S. 399) that 
the primary objective of the statute was to prevent injury to the public health. 
Rather, they recognize, at least tacitly, the power of Congress to decide for itself 
what classes of products in interstate commerce might endanger the public 
health. It is true that in some of these cases the judge in his opinion stated 
that the particular subject matter of condemnation with which the court was 
there concerned was unfit for food. But in none of the cases cited, nor in any 
;other case that I have found, has it ever been held that a finding by the court 
that the subject matter was unfit for food was essential to a decree: a bare find- 
ing that the subject matter consisted at least in part of decomposed matter was 
legally sufficient.
' "Such then Was the uniform construction of the earlier act of 1906. And the 
act of 1938 follows the earlier act (on this point) so closely that it is only reason- 
able to infer that Congress intended to continue the substance of the earlier act 
as judicially construed. This conclusion is further confirmed by Senate Report 
No. 361, March 13, 1935, on S. 5, calendar 375, 74th Congress, First Session, 
introduced by Senator Copeland on January 3; 1935: This report states: 'the pro- 
visions of section 301 (2), (3), arid (5) (later incorporated into 21 U, S. C. A. 342 
(a)) dealing with filthy food and food from diseased animals are essentially 
the same as those of the present law.' And the report of the Committee on 
Interstate and Foreign Commerce, 75th Congress, Third Session, on S. 5, states: 
'The measure * * * amplified and Strengthens the provisions to safeguard 
the public health.' Thus clearly Congress intended that the clause 'or if it is 
otherwise unfit for food,' which the act of 1938 added to the earlier act, should 
enlarge rather than restrict the class of products subject to condemnation, 
. "Some of the Government witnesses intheir testimony took the position that 
the product here involved, although not deleterious to health, was nonetheless 
unfit for food. As my findings in paragraph 7 show, I have been unable to find 
any convincing proofs here to substantiate this distinction. 
"But the.mere fact that under my construction of the act cases may occa- 
sionally occur—of which this is perhaps one—in which a product is condemned 
though not actually unfit for food, by no means demonstrates that I have er- 
roneously construed the act. It suggests only that Congress considered that 
the unrestricted circulation in interstate commerce of foods containing decom- 
posed substances was a practice fraught with such dangerous tendencies that 
that broad class of substances should be prescribed. But section 306 of the act, 
21 U. S. C. A. 336, vests a broad discretion in the Secretary of Agriculture to 
forego the prosecution of 'minor violations.' Thus Congress definitely recognized 
that cases might occasionally fall within the ban of the act as having a dangerous 
•tendency, even though, the tendency, in the judgment of the Secretary, was too 
slight or remote to justify prosecution. In other words, the degree of the viola- 
tion is important only for its effect upon the administrative discretion; it affects 
not at all the scope of the legislative ban which the judicial power when once 
invoked must apply."
• On April 18, 1942, judgment of condemnation was. entered, and the product 
was ordered released to the claimant under bond, conditioned that certain codes 
which previous examination had shown to contain decomposed material be sepa- 
rated from the lot and destroyed, and that the balance be examined further and 
the bad portion separated and destroyed under the supervision of the Food and 
Drug Administration.
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