21787. Adulteration of canned tomatoes.   U. S. v. 68 Cases * * *.   Govern¬
ment's motion to strike claimant's "answer" sustained in part.   (F. D. C.
No. 33862.   Sample No. 4334-L.) 
LIBEL FILED :   September 12, 1952, Western District of Kentucky. 
ALLEGED SHIPMENT :   On or about August 6, 1952, by Lord-Mott Co., Inc., from
Baltimore, Md. 
PRODUCT:   68 cases, each containing 24 cans, of tomatoes at Louisville, Ky. 
LABEL, IN PART:    (Can)   "Iona Tomatoes   Net Wt. 1 Lb. 12 Ozs.   Standard
Quality   Grade C." 
NATURE OF CHARGE:   Adulteration, Section 402 (a)   (3), the article consisted
in whole or in part of a decomposed substance by reason of the presence of
decomposed tomato material. 
DISPOSITION:   On December 17, 1952, Lord-Mott Co., Inc., without filing a
formal claim, submitted a letter to the court designated as an "answer" to
the libel. The "answer"'? failed to deny the allegations of the libel, but instead 
set forth approximately 5 different reasons for dismissing the libel as fol- 
lows: (1) That the Federal Security Administrator had over the years 
allowed a tolerance for decomposition which he had gradually lowered to 
what was asserted to be an "unreasonable" level; (2) that the inspectors who 
collected the samples of the product acted illegally and that the evidence so 
obtained should be suppressed; (3) that a meeting of a number of tomato 
packers had been called to discuss relief from the act's ban on decbmposition; 
(4) that a congressional committee was scheduled to investigate the Food 
and Drug Administration in the near future; and, (5) that the product was 
not injurious to the consumer.
The Government filed motions to have the court enter either a default judg- 
ment or a judgment on the pleadings. The Government filed also a motion to 
strike the "answer." On March 27,1953, the court handed down the following 
decision on the Government's motions:
SHELBOUBNE, District Judge:
ORDER
"This case is before the Court on Libelant's motion (1) to strike Claimant's 
answer and such portions thereof as seem proper on the alleged grounds 
that (1) no claim to the seized article has been filed by the Libelee and (2) the 
answer consists entirely of matter which is immaterial to this action and 
(3) the defenses relied upon in the answer are insufficient in law.
"2. An application for default judgment for the alleged reason that no 
claimant has appeared to make a claim of ownership to the seized articles.
"1. While Lord Mott & Company, Inc., in its somewhat informal answer 
has not spelled out a formal claim to the goods, it is apparent from the answer 
that the Company is here desiring to claim the libeled goods and to contest 
the right of the Government to confiscate them. On this ground, the Libelant's 
motion to strike is overruled.
"So much of the answer as assails the Regulations as unreasonable is over- 
ruled.   Libelee has not denied that its product is technically adulterated.
"The third defense of the answer refers to a proposed meeting of Canners, 
which will be held to discuss administration of the Food Laws. This para- 
graph #3 is stricken. Likewise, the fourth defense is stricken. Congressional 
action, such as referred to in this defense has not yet resulted and proposed 
legislation cannot be considered until it is legally enacted.
"The paragraph of respondent's answer, in which the writer offers to 
consume in open Court, a can of the tomatoes, is likewise immaterial and is 
stricken.
"The only issue in this case, as it is presently posed is whether the inspec- 
tion, which resulted in the seizure of the tomatoes, was in violation of the 
law. In other words, did the Government legally take its sample? U. S. v. 
Cardiff, 21 Law Week 4045 — TJ. S. —.
"Therefore, the motion of the Government to strike the answer as a whole 
is overruled, as its motion for judgment on the pleadings. Its motion to strike 
the third and fourth defenses as numbered in the answer and to strike so 
much of the answer as refers to the offer of George S. Clark to eat a can of 
the tomatoes and drink the juice, as a test of the claimed contraband, is 
sustained."
On July 1, 1953, Lord-Mott Co., Inc., advised that it did not desire to offer- 
further defenses to the libel and consented to the entry of a default decree.. 
On July 10, 1953, the court entered a decree of condemnation and ordered 
that the product be delivered to a public institution, for use as animal feed,