16751. Adulteration of coflfee sweepings. U. S. v. 391 Bags * * *. Tried to 
the court. Judgment for Government. Decree of condemnation and 
destruction.    (F. D. C. No. 27559.    Sample No. 11534-K.)
in whole or in part of a filthy substance, and was otherwise unfit for food by 
reason of the presence of wood splinters, dirt, rodent excreta, and other extra- 
neous material, and because of contamination with polluted sea water.
DISPOSITION : The Lorraine Trading Corp., Brooklyn, N. Y., having appeared as 
claimant, the matter came on for trial before the court on May 16, 1950, and 
judgment was entered for the Government. The court handed down the fol- 
lowing memorandum opinion, findings of fact, and conclusions of law:
INCH, District Judge: "This is a proceeding brought under the Federal Food, 
Drug and Cosmetic Act (21 U. S. C. A., Sec. 301, et seq.) to condemn a certain 
quantity of roasted coffee contained in bags. The libel alleges that the coffee 
was adulterated when introduced into, and while in, interstate commerce 
within the meaning of the Act, in that it consists in whole or in part of a filthy 
substance, and is otherwise unfit for food by reason of the presence therein of 
wood splinters, dirt, rodent excreta and other extraneous material and because 
of contamination with polluted sea water.
"It appears that a concern, Coffette Products, Inc., had been engaged in the 
manufacture of chemical products, such as detergents, soap, cosmetics, sham- 
poos, dyes, etc., from condemned coffees which were unfit for beverage purposes. 
In 1944 and 1945 it had purchased various quantities of coffee and stored it at 
its premises in Brooklyn, where there was a fire in December of 1945. As a 
result of the fire most of the bags were split open and their contents strewn 
about the premises and sprayed with water by the Fire Department. After 
being reprocessed to remove pieces of wood and nails, the coffee was rebagged 
and again stored in one of the Coffette buildings.
"In 1946 Coffette also purchased two freight carloads of coffee which had 
been sunk in the Hudson River while being transported on floats of the Penn- 
sylvania Railroad from New York City to a town in Pennsylvania. A health, 
officer of the Jersey City Board of Health testified that the water in which the 
coffee had been submerged for about two days was tested for bathing purposes 
and found to be 'highly polluted with sewage.' After the cars were salvaged 
from the River they were transported to Jersey City and placed under embargo 
by the Jersey City Board of Health and later released under bond to Coffette 
for non-food purposes.
"Coffette Products, Inc., thereafter became bankrupt, and at the bankruptcy 
sale of its assets on June 14,1949, claimant, Lorraine Trading Corp., purchased 
391 bags of the coffee.
"The president of Coffette testified that of these bags, 50 or 60 came from 
the submerged Pennsylvania Railroad cars, and the remainder was coffee sal- 
vaged from the fire. Claimant purchased the coffee for 75^ a bag, or % of a 
cent a pound, and there is proof that a sign reading 'Old Bad Coffee' was 
posted at the sale, and that claimant purchased the coffee knowing it was unfit 
for human consumption.
"A government chemist testified to the presence in the coffee of dirty and 
scorched paper, nails, charcoal, wood splinters, glass, metal fragments, small 
stones, dirt, roasted grains, manure fragments and rodent pellets, all of which 
were separated from numerous samples of the coffee and placed in cellophane 
bags and introduced into evidence. In order to show that the coffee had been 
contaminated with sea-water, the government also presented evidence of chem-
ical tests showing the presence of an excess amount of chlorides in the coffee 
bKans. A number of experts associated with some of the largest coffee con- 
cerns in New York City testified on behalf of the government that as a result 
of 'cup tests' they found the coffee to be damaged, rancid, putrid and unfit for 
human consumption.
"Claimant's witness, Slomowitz, testified that he purchased the coffee at a 
private sale immediately after someone at the auction had failed to carry out 
a bid; that the auctioneer told him the coffee was under the supervision of the 
'Pure Food and Drug'; and that he intended to ship th,e coffee to Belgium, and 
showed one of the employees of the Pure Food and Drug Administration a 
letter from a Belgian broker offering to purchase it. Claimant also presented 
expert testimony by a chemist to the effect that his examination of certain 
samples did not reveal the presence of any extraneous matter such as wood 
splinters, dirt or rodent excreta, or any other foreign matter.
"Title 21 U. S. C. A. Sec. 342 provides:
A food shall be deemed to be adulterated * * * (a) * * * (3) if it consists 
in whole or in part of any filthy, putrid or decomposed suostance, or if it is otherwise 
unfit for food.    [Emphasis supplied.]
"There can be no doubt that this coffee, with its history of part having been 
submerged in highly polluted water for two days, and the remainder having 
been salvaged from a fire, and having present in it the collection of extraneous 
matter found by the government chemist, is plainly 'adulterated' and unfit for 
human consumption within the meaning of the Act. The government has more 
than sustained the burden of proof on that issue.
"Claimant citing United States v. Phelps-Dodge Mercantile Co., 9 Cir., 157 
F. 2d 453, Cert, denied 330 U. S. 818, contends that this coffee, even if adul- 
terated, was not adulterated 'when introduced into or while in interstate 
commerce.'   Sec. 334 (a) of the Act provides in part:
Any article of food * * * that is adulterated * * * when introduced into or 
while in interstate eomjnerce or while held for sale (whether or not the first sale) after 
shipment in interstate commerce * * * shall be liable to be proceeded against 
*    *    *.    [Emphasis supplied.]
The italicized clause was added to the statute by the Act of June 24, 1948 
(62 Stat. 582), and claimant contends that it should not be deemed to operate 
retroactively. As for the original provision of the section that it applies to 
food adulterated 'when introduced into or while in interstate commerce,' 
claimant says that at the time the coffee was adulterated as a result of the fire 
in Brooklyn, it was not then in interstate commerce. However, it cannot be 
overlooked that the 50 or 60 bags of coffee which were contaminated by the 
waters of the Hudson River were at that time being transported from New 
York City to a town in Pennsylvania and were thus clearly adulterated 'while 
in interstate commerce.' Further, after being released by the Jersey City 
Board of Health, they were shipped to Coffette in Brooklyn, New York, and 
were adulterated 'when introduced into or while in interstate commerce' 
at that time. It was proven, and it is admitted in claimant's brief, that those 
50 or 60 bags cannot be identified and separated from the lot seized. Thus 
that part of the libeled coffee which was in an adulterated condition when 
introduced and while in interstate commerce is substantial enough to warrant 
condemning the entire lot, particularly since it is inextricably mixed with 
coffee which was adulterated after shipment in interstate commerce. It there- 
fore, becomes unnecessary to depend upon a retroactive effect, if any, of the 
1948 amendment, or the government's application after trial to amend the 
libel in conformance therewith.
"The other contentions of claimant to the effect that the coffee is not contra- 
band under the Act have been fully examined and found to be without merit.
"Claimant contends that it should be permitted to export the coffee to Bel- 
gium under the provisions of Sec. 381 (d). Even were I inclined to permit 
the export of this coffee to a foreign country, which I am not, it has been 
held in United States v. Kent Food Corporation, 2 Coir., 168 F. 2d, 632, that 
it is beyond the jurisdiction of this Court to allow the exportation of food con- 
demned under the provisions of the Act. (See also: 230 Bowes, More or Less, 
of Fish v. United States, 6 Cir., 168 F, 2d 360.)
"The government has no objection to claimant being permitted to salvage 
the coffee under the provisions of Sec. 334 (d), provided that it is used for 
commercial purposes only and other than food.   The coffee will be condemned
forthwith, and unless claimant wishes to accept the government's offer, it / 
will be otherwise disposed of in accordance with the provisions of Sec. 334 (d).
FINDINGS   OP  FACT
"1. This proceeding was commenced by the filing of a libel on July 8, 1949. 
Monition was issued on that date and the article was seized by the Marshal 
on July 13, 1949, in the possession of Bowne Morton Stores, Inc., 595 Smith 
Street, Brooklyn, New York, to the account of Lorraine Trading Corp., 
Brooklyn, New York.
"2. Lorraine Trading Corp., a New York corporation, intervened as claimant 
and owner of the seized article.
"3. The article seized consisted of 391 bags, each containing approximately 
100 pounds, of roasted coffee bKans.
"4. On June 14,1949, claimant purchased this coffee at an auction conducted 
for the sale of the bankrupt stock of Cbffette Products, Inc., in Brooklyn, 
New York.
"5. That the aforesaid coffee contained wood splinters, dirt, rodent excreta 
and other extraneous material and added chlorides. The presence of much 
of this extraneous matter resulted from part of the coffee having been salvaged 
from a fire, and the remainder having been submerged for about two days in 
polluted sewage water of the Hudson River off Jersey City, New Jersey.
"6. The coffee herein is unfit for food but may be used for commercial 
purposes.
CONCLUSIONS OP LAW
"1. This Court has jurisdiction of the subject matter of the above-entitled 
proceeding and of the parties thereto by virtue of 21 U. S. C. 334 (a).
"2. The coffee seized is an article used for drink by man, and is, therefore, 
a food within the meaning of 21 U. S. C. 321 (f).
"3. The article seized was shipped in interstate commerce within the 
meaning of 21 U. S. C. 321 (b).
"4. The food seized was adulterated within the meaning of 21 U. S. C. 342 
(a) (3) while in interstate commerce.
"5. The food seized is subject to condemnation pursuant to 21 U. S. C. 334 
(a), and libellant is entitled under 21 U. S. C. 334 (e) to costs incurred in 
this proceeding.
"6. If the claimant so desires, it may, by posting good and sufficient bond 
within ten days from the entry of the decree and payment of costs, salvage 
the coffee for commercial purposes under the supervision of the Federal 
Security Agency in accordance with the provisions of 21 U. S. C. 334 (d)."
On May 31,1950, the court entered a decree providing for the destruction of 
the product.