29713. Rice, hamburger mix, and breading mix.   (F.D.C. No. 47122.   S. Nos. 
623/4 T, 2-602/4 T, 2-606 T.)
INFORMATION FILED : 7-18-62, M. Dist. Fla., against Wiesenf eld Warehouse Co., 
a corporation, Jacksonville, Fla.
ALLEGED VIOLATION : Between 1-1-61 and 12-4-61, and while quantities of rice, 
hamburger mix, and breading mix were being held for sale after shipment in 
interstate commerce, the defendant caused the article to be held in a building 
accessible to rodents, birds, and insects, and caused the articles to be exposed 
to contamination by rodents, birds, and insects, which resulted in the articles 
becoming adulterated.
CHARGE: 402(a)(3)—contained rodent urine, rodent excreta, insects, insect 
larvae, inspect pupae, and insect cast skins; and 402(a)(4)—held under 
insanitary conditions.
PLEA :   Not guilty.
DISPOSITION: On 8-2-62, the defendant moved to dismiss the information on 
the grounds that it did not state facts sufficient to constitute an offense and 
that the statute was unconstitutional as being indefinite, uncertain, and obscure 
in violation of the Sixth Amendment and as being in violation of the due process 
clause of the Fifth Amendment.
A hearing was held on the motion on 10-19-62, and on 12-21-62, the district 
court granted the defendant's motion, issuing the following order (217 F. 
Supp. 638) :
SIMPSON, District Judge:
ORDER GRANTING MOTION TO DISMISS
"This cause was taken under advisement on October 19, 1962, on defendant's 
motion to dismiss made in open court. The plaintiff and defendant now having 
filed briefs, it appears that said motion should be granted.
"21 U.S.C. 331 (k) prohibits the specific acts of alteration, mutilation, 
destruction, obliteration or removal of the labeling of, a food, drug, device or 
cosmetic. This enumeration of specific acts is followed by the general term, 
'or the doing of any other act.' The information alleges that adulteration 
,was caused by the defendant's act of holding certain food in its warehouse, 
which was accessible to rodents, birds and insects.
"The government contends that one of the purposes of Congress in enacting 
Section 331 (k) was to prohibit the holding of food after shipment in inter- 
state commerce under insanitary conditions whereby such food may become
See also Nos. 29707* 39749.
contaminated with filth, and cites House Report No. 807, 80th Congress, 1st 
Session, July 8,1947, at page 3 :
'As so amended the subsection will penalize among other acts resulting 
in Adulteration of misbranding, the act of holding articles under unsanitary 
conditions whereby they become contaminated with filth or rendered in- 
jurious to health.'
"This not only makes one holding such goods an insurer but subjects him to 
criminal action. Under the rule of construction known as ejwsdem generis, 
where a general term follows an enumeration of specific classes of activities, 
the general term will be limited to the same general nature as those enumerated. 
The rule is applicable only where intent is not discoverable from the statutory 
language, and it may not be used to defeat the obvious purpose of legislation. 
United States v. Alpers, 338 U.S. 680 (1950). Congress may have intended the 
construction advocated by the prosecution, however, the statute, as it is pres- 
ently written, is too vague and indefinite to apply to the mere act of 'holding' 
goods. In an effort to uphold the statute as constitutional, strict rules of con- 
struction must be applied; therefore the information does not allege an offense 
under Section 331 (k), and it is thereupon:
"ORDERED that defendant's motion to dismiss is granted.
"DONE AND ORDERED in Chambers, at Jacksonville, this 21st day of 
December, 1962."
The Government appealed the decision to the Supreme Court which, on 2- 
17-64, rendered the following opinion (376 U.S. 86) revising the order and 
remanding for trial:
"ME. JUSTICE STEWAET delivered the opinion of the Court.
"Section 301 (k) of the Federal Food, Drug and Cosmetic Act prohibits the 
'alteration, mutilation, destruction, obliteration, or removal of the whole or any 
part of the labeling of, or the doing of any act with respect to, a food, drug, 
device, or cosmetic, if such act is done while such article is held for sale . . . 
after shipment in interstate commerce and results in such article 
being adulterated or misbranded.'x Section 402 of the Act provides, among 
other things, that '[a] food shall be deemed to be adulterated (a) . . . (3) if it 
consists in whole or in part of any filthy, putrid, or decomposed substance, or 
if it is otherwise unfit for food; or (4) if it has been prepared, packed or held 
under insanitary conditions whereby it may have become contaminated with 
filth, or whereby it may have been rendered injurious to health . . .'2 The 
question presented by this appeal is whether a criminal information which 
alleges the holding of foodstuffs by a public storage warehouseman (after 
interstate shipment and before ultimate sale)' under insanitary conditions in 
a building accessible to rodents, birds and insects, where it may have become 
contaminated with filth, charges an offense finder § 301 (k).
"The Government filed a criminal information containing allegations to this 
effect3 in the District Court for the Middle District of Florida, charging 
the appellee, a public storage warehouseman, with violations of § 301 (k). The 
court construed § 301 (k) as not applying to the mere act of 'holding' goods, 
and dismisses the information for failure to allege an offense under the statute. 
217 F. Supp. 638, 639. The order of dismissal was appealed by the Government 
under the Criminal Appeals Act, which gives this Court jurisdiction to review 
on direct appeal a judgment dismissing an information on the basis of a
i 52 Stat. 1040, 21 U.S.C. § 3311 (k).
2 52 Stat. 1040, 21 U.S.C. § 342(a) (3) and (4).
s The information was in six counts, the counts differing only with respect to the par- 
ticular shipment or product involved. Each count charged that appellee had received an 
article of food which had been shipped in interstate commerce, and that while this food 
was being held for sale, appellee caused it to be held in a building accessible to rodents, 
birds, and insects, thus exposing it to contamination, and thereby adulterating the food 
within the meaning of § 402(a) of the Act, 21 U.S.C. § 342(a), in that the food consisted 
in part of a filthy substance, to wit, rodent excreta, insect larvae, etc., and in that it was 
held under insanitary conditions whereby it may have become contaminated with filth.
'construction of the statute upon which the . . . information is founded.' * We 
noted probable jurisdiction. 373 U.S. 921. For the reasons which follow, we 
reverse the judgment of the District Court.
"In arriving at its construction of the statute, the District Court reasoned 
that § 301 (k) 'as is presently written, is too vague and indefinite to apply to 
the mere act of "holding" goods.' 217 F. Supp., at 639. Accordingly, 'in an 
effort to uphold the statute as constitutional,' the court applied the rule of 
ejusdem generis to limit the words 'the doing of any other act' in § 301 (k) to 
acts of 'the same general nature' as those specifically enumerated in the sub- 
section, i.e., acts relating to the alteration, mutilation, destruction, obliteration, 
or removal of the labeling of articles. Ibid. We find such reliance on the rule^ 
of ejusdem generis misplaced; its application to § 301 (k) is contrary to both the 
text and legislative history of the subsection, and unnecessary to a con- 
stitutionally permissible construction of the statute.
"The language of § 301 (k) unambiguously defines two distinct offenses with 
respect to food held for sale after interstate shipment. As originally enacted 
in 1938, the subsection prohibited 'the alteration, mutilation, destruction, 
obliteration, or removal' of the label, or 'the doing of any other act' with respect 
to the product 'which results in such article being . . . misbranded.'s The 
section was amended in 1948 to prohibit additionally 'the doing of any act' 
with respect to the product which 'results in such article being adulterated.'6 
The acts specifically enumerated in the original enactment relate to the of- 
fense of misbranding through labeling or the lack thereof. The separate 
offense of Adulteration of the other hand, is concerned solely with deteriora- 
tion or contamination of the commodity itself. For the most part, acts re- 
sulting in misbranding and acts resulting in adulteration are wholly distinct. 
Consequently, since the enumerated label-defacing offenses bear no textual 
or logical relation to the scope of the general language condemning acts of 
product adulteration,7 application of the rule of ejusdem generis to limit the 
words 'the doing of any act' resulting in product adulteration in § 301 (k) to 
acts of the same general character as those specifically enumerated with re- 
spect to misbranding is wholly inappropriate.
"Moreover, the legislative history makes plain that no such application of 
the rule was intended. As the House Committee Report on the proposed 1948 
amendment unequivocally stated:
'It seems clear that under the subsection as now in force the rule of 
ejusdem generis would not apply in interpreting the words "or the doing 
of any other act. . . ," and it is even more clear that this rule will not 
apply in the interpretation of the subsection as amended by this bill.' 8
"It is equally clear from this legislative history that Congress intended to 
proscribe the particular conduct charged in the information filed below—the 
holding of food under insanitary conditions whereby it may have become 
contaminated. The House Committee Report noted that the amended section 
would 'penalize, among other acts resulting in Adulteration of misbranding, 
the act of holding articles under insanitary conditions whereby they become 
contaminated with filth or rendered injurious to health,' and emphasized that
* "An appeal may be taken by and on behalf of the United States from the district courts 
direct to the Supreme Court of the United States in all criminal cases in the following 
instances: "From a decision or judgment setting aside, or dismissing any indictment or 
information, or any count thereof, where such decision or judgment is based upon the 
invalidity or construction of the statute upon which the indictment or information is 
founded . . ."   '62 Stat. 84,4, 21 U.S.C. § 3731.
« 52 Stat. 1040, 21 U.S.C. § 331 (k).    See United States v. Sullivan.    332 U.S. 689.
«,62 Stat. 582, 21 U.S.C. § 331 (k).
7 The House Committee concerned with the proposed amendment to § 301 (k) was aware 
of this textual problem. "The present section 301 (k) forbids, first, certain acts with re- 
spect to the labeling of an article, and second, 'any other act with respect to' the article 
itself which results in its being misbranded . . . adulteration more often occurs as a result 
of acts done to or with respect to the article itself. Since the section already contains 
the broad phrase 'any other act with respect to' the article, and since this phrase is not 
limited by the preceding enumeration of forbidden acts with respect to the labeling, there 
is no need in making it applicable to adulteration, to change the existing statutory lan- 
guage in this regard."    H.R. Rep. No. 807, 80th Cong., 1st less., p. 3.
8 Id., at pp. 3-4.
the Committee intended the amendments to be applied to their fullest con- 
stitutional limits.9
"Congress chose statutory language appropriate to effectuate this purpose. 
Section 301 (k), as amended, prohibits 'any . . . act' which results in adul- 
teration of the product. And food is adulterated if it 'has been prepared, 
packed, or held under insanitary conditions whereby it may have become 
contaminated with filth.'10 This language defines with particularity an 
explicit standard of conduct. Section 301 (k), read together with the definition 
of food adulteration contained in ? 402(a) (4), therefore, gives ample warning 
that the 'holding' or storing of food under insanitary conditions whereby it 
may have become contaminated is prohibited.
"It is settled law in the area of food and drug regulation that a guilty intent 
is not always a prerequisite to the imposition of criminal sanctions. Food and 
drug legislation, concerned as it is with protecting the lives and health of 
human beings, under circumstances in which they might be unable to protect 
themselves, often 'dispenses with the conventional requirement for criminal 
conduct-awareness of some wrongdoing. In the interest of the larger good it 
puts the burden of acting at hazard upon a person otherwise innocent but 
standing in responsible relation to a public danger. United States v. Balint, 
258 U. S. 250.'    United States v. Dotterweich, 320 U. S. 277,281.
"It is argued, nevertheless, that the Government in this case is seeking to 
impose criminal sanctions upon one 'who is, by the very nature of his business, 
powerless' to protect against this kind of contamination, however high the 
standard of care exercised. Whatever the truth of this claim, it involves 
factual proof to be raised defensively at a trial on the merits. We are here 
concerned only with the construction of the statute as it relates to the suffi- 
ciency of the information, and not with the scope and reach of the statute as 
applied to such facts as may be developed by evidence adduced at a trial.
"Finally, the appellee attempts to uphold the dismissal of the information 
on a ground not relied on by the District Court. The appellee says that it was 
a bailee of the food, not a seller, and that it was not holding the food for sale 
within the meaning of § 301 (k). Both the language and the purpose of the 
statute refute this construction. The language of § 301 (k) does not limit its 
application to one holding title to the goods, and sincethe danger to the public 
from insanitary storage of food is the same regardless of the proprietary status 
of the person storing it, the purpose of the legislation—to safeguard the con- 
sumer from the time the food is introduced into the channels of interstate com- 
merce to the point that it is delivered to the ultimate consumer—would be 
substantially thwarted by such an unwarranted reading of the statutory lan- 
guage. United States v. Kocmond, 200 F. 2d 370, 372; L. United States v. 
Sullivan, 332 U.S. 689, 696; United States v. Dotterweich, 320 U.S. 277, 282.
"Accordingly, we hold that a criminal information charging a public storage 
warehouseman with holding food (after interstate shipment and before ulti- 
mate sale) under insanitary conditions whereby it may have become con- 
taminated with filth, charges an offense under § 301 (k) of the Federal Food, 
Drug and Cosmetic Act. The order of the District Court dismissing the in- 
formation is therefore reversed and the case is remanded to that court for 
further proceedings consistent with this opinion."
The case was rescheduled for trial on 6-29-64, at which time the defendant 
entered a plea of nolo contendere to 1 count of the information, and was fined 
$750.