13036. Alleged Adulteration of spaghetti and macaroni.   U. S. v. 150 Cartons, etc.
Tried to the court. Verdict for claimant. Verdict sustained on Govern- 
ment's appeal to circuit court of appeals. Government's request for cer- 
tiorari to United States Supreme Court denied. (F. D. C. No. 14857. 
Sample Nos. 73785-F to 73787-F, incl.)
LIBEL FILED: February 27, 1944; amended September 28, 1945, District of 
Arizona.
ALLEGED SHIPMENT :    On or about February 13,1943, from Denver, Colo.
PRODUCT: 150 10-pound cartons of spaghetti and 25 10-pound cartons of maca- 
roni at Douglas, Ariz., in possession of the Phelps Dodge Mercantitle Co.
NATURE OF CHARGE: Adulteration, Section 402 (a) (3), the product consisted 
in whole or in part of a filthy substance by reason of the presence of insect 
fragments, rodent hairs, and rodent excreta; and, Section 402 (a) (4), it had 
been held under insanitary conditions whereby it may have become con- 
taminated with filth.
DISPOSITION: October 22, 1945. The Phelps Dodge Mercantile Co. having filed 
exceptions to the libel, the district court allowed the exceptions and ordered 
the libel dismissed and the product returned to the claimant. The Government 
having appealed to the circuit court of appeals, the circuit court of appeals, on 
September 25, 1946, handed down the following decision sustaining the lower 
court:
MATHEWS, Circuit Judge: "On an amended libel of information filed on 
September 28,1945, appellant, the United States, proceeded against 175 cartons
*See also No. 13176.
of food (150 cartons of spaghetti and 25 cartons of macaroni) in possession of 
appellee, Phelps Dodge Mercantile Company, in the District of Arizona. The 
amended libel, hereafter called the libel, prayed that the food be seized and 
condemned. The food was seized. Appellee excepted to the sufficiency of the 
libel. The exception was sustained, and a decree was entered dismissing the 
libel and directing that the food be released to appellee. From that decree 
this appeal is prosecuted. The question is whether the libel stated facts 
sufficient to warrant condemnation of the food.
"Condemnation was sought under § 304 (a) of the Federal Food, Drug, and 
Cosmetic Act,1 21 U. S. C. A. § 334 (a), which provides: 'Any article of 
food * * * that is adulterated2 * * * when introduced into or while 
in interstate commerce3 * * * shall be liable to be proceeded against while 
in interstate commerce, or at any time thereafter, on libel of information and 
condemned in any district court of the United States within the jurisdiction of 
which the article is found   *   *   *'
"The libel stated that the food was shipped in interstate commerce from 
Denver, Colorado, to Douglas, Arizona, in 1943—75 cartons on February 13, 
1943, and 100 cartons ,on June 18, 1943. The libel further stated: 'That said 
food * * * is [on September 28, 1945] adulterated within the meaning of 
21 U. S. C. A. as follows:
342 (a) (3) in that it consists wholly or in part of a filthy substance4 by reason of the 
presence therein of insect fragments, rodent hairs, and rodent excreta;
342 (a) (4) in that it has been held under insanitary conditions whereby it has been 
contaminated with filth,5 while held in the original packages by [appellee] at [appellee's] 
warehouse in Douglas, Arizona.
"Thus the libel stated, in substance and effect, that on September 28, 1945— 
more than two years after it was shipped in interstate commerce—the food was 
adulterated. The libel did not state that the food was adulterated when 
introduced into or while in interstate commerce.6 Instead, the libel stated, in 
substance and effect, that the food was adulterated while held in original 
packages by appellee at its warehouse in Douglas, Arizona. Thus it appeared 
that the Adulteration of the food occurred after it ended its interstate journey 
and came to rest at appellee's warehouse.7
"Appellant contends that the fact that the food was adulterated while held 
in original packages was sufficient to warrant its condemnation. We do 
not agree. As shown above, § 304 (a) of the Federal Food, Drug and Cosmetic 
Act, 21U. S. C. A. § 334 (a), under which this proceeding was brought, provides 
for the condemnation of 'Any article of food * * * that is adulterated 
* * * when introduced into or while in interstate commerce.' It says 
nothing about original packages. The terms 'interstate commerce' and 'origi- 
nal packages' are not synonymous. Articles may be in interstate commerce 
without being in original packages. They may be in original packages with- 
out being in interstate commerce. They may be in both interstate commerce 
and original packages and, if in both, may cease to be in interstate commerce 
and yet remain in original packages.8   Hence the fact that the food was
1 Act of June 25, 1938, c. 675, 52 Stat. 1040, as amended.
2 Section 402 of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. § 342, pro- 
vides : "A food shall be deemed to be adulterated
"(a) * * * (3) if it consists in whole or in part of any filthy, putrid, or decom- 
posed substance * * * or (4) if it has been prepared, packed, or held under insani- 
tary conditions whereby it may have become contaminated with tilth    *    *    *"
3 Section 201 (b) of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A., § 321 (b), 
provides: "The term 'interstate commerce' means (1) commerce between any State or 
Territory and any place outside thereof, and (2) commerce within the District of Colum- 
bia or within any other Territory not organized with a legislative body."
4 See § 402 (a) (3) of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A., 
§ 342 (a)  (3).
the § 402 (a) (4) of the Federal Food, Drug and Cosmetic Act, 21 U.  S. C. A., 
§342 (a) <4). 
8 See § 304 (a) of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A., § 334 (a).
7 C. American Steel & Wire Co. v. Speed, 192 U. S. 500; General Oil Co. v. Grain, 209 
U. S. 211; Bacon v. Illinois, 227 U. S. 504; Texas Co. v. Brown, 258 U. S. 466; Sonne- 
oorn v. Cureton, 262 U. S. 506 ;Gregg Dyeing Go. v. Query, 286 U. S. 472; Nashville, C. 
& St. L. R. Co. v. Wallace, 288 U. S. 249 ; Louis K. Liggett Co. v. Lee, 288 U. S. 517; 
Edelman v. Boeing Air Transport, 289 U. S. 249; Southern Pac. Co. v. Gallagher, 306 
U. S. 167; Walling v. Jacksonville Paper Co., 317 U. S. 564; Higgins v. Carr Bros. Co., 
317 U. S. 572.
8 Cf. Woodruff v. Parham, 8 Wall. 123 ; Stinson v. Lott, 8 Wall. 148; American Steel & 
Wire Go. v. Speed, supra; Baccus v. Louisiana, 232 U. S. 334; Wagner v. Covington, 251 
U. S. 95 ; Sonneoorn v. Cureton, supra; Wiloil Corp. v. Pennsylvania, 294 U. S. 169: 
Whitfield v. Ohio, 297 U. S. 431.
adulterated while held in original packages did not show that it was adul- 
terated when introduced into or while in interstate commerce.
"Appellant cites, in support of its contention, § 10 of the Food and Drug Act 
of 1906,9 21 U. S. C. A. § 14, which provided that 'any article of food * * * 
that is adulterated * * * and is being transported from one State * * * 
to another for sale, or, having been transported, remains * * * in original 
unbroken packages * * * shall be liable to be proceeded against * * * 
and seized for confiscation by a process of libel for condemnation.' This 
proceeding was not brought, and could not have been brought, under § 10 of 
the Food and Drug Act of 1906, 21 U. S. C. A. § 14, for that section was re- 
pealed10 long before this proceeding was brought. As stated above, this 
proceeding was brought under § 304 (a) of the Federal Food, Drug and 
Cosmetic Act, 21 U. S. C. A. § 334 (a). The quoted provision of § 10 of the 
Food and Drug Act of 1906, 21 U. S. C. § 14, is not in § 304 (a) of the Federal 
Food, Drug and Cosmetic Act, 21 U. S. C. A. § 334 (a), and should not be read 
into it by construction.
"Whether Congress could have provided in § 304 (a) of the Federal Food, 
Drug and Cosmetic Act, 21 U. S. C. A. § 334 (a), for the condemnation of any 
article of food that is adulterated while held in original packages after being 
transported in interstate commerce need not be considered, since Congress 
did not, in fact so provide.
"Appellant says that administrative officers charged with the duty of 
enforcing §'304 (a) of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. A. 
? 334 (a), have interpreted it as providing for the condemnation of any article 
of food that is adulterated while held in original packages after being trans- 
ported in interstate commerce. Being clearly erroneous, that interpretation 
need not and should not be followed by the courts.11
"Appellant has cited no court decision supporting its contention, and we 
have found none. We conclude, as did the court below, that the libel did not 
state facts sufficient to warrant condemnation of the food.
"Decree affirmed."
On February 10,1947, the Government's petition for the writ of certiorari to 
the United States Supreme Court was denied.