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UNITED STATES v. 233 TINS

August 28, 1959

UNITED STATES OF AMERICA, LIBELANT,
v.
233 TINS, MORE OR LESS, OF AN ARTICLE LABELED IN PART: "GROVE BRAND * * * WHOLE BLAKEMORE STRAWBERRIES, NET WEIGHT 30 LBS. CODE 5258 KELLY CANNING CO. PRAIRIE GROVE, ARKANSAS." KELLY CANNING COMPANY, CLAIMANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

  Statement

This is a seizure action brought under the provision of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. The libel of information charges that the res, 233 tins of frozen strawberries, is "adulterated" within the meaning of 21 U.S.C.A. § 342(a)(3) while held for sale after shipment in interstate commerce. The adulteration charged is that it consists "wholly or in part of a decomposed substance by reason of the presence therein of rotten berries." The claimant, Kelly Canning Company, admits in its answer that the strawberries involved in this case were shipped in interstate commerce. It denies, however, that the frozen strawberries are adulterated as charged.

The strawberries in question comprise a portion of lot No. 5258 of the Kelly Canning Company of Prairie Grove, Arkansas. On May 27, 1958, the strawberries were quarantined by Arkansas state authorities while at the Rogers Ice and Cold Storage Company, Rogers, Arkansas. The strawberries are still at that location. However, from time to time various samples of the frozen fruit have been taken and examined.

At the conclusion of the trial to the court on July 1, 1959, the case was submitted and taken under advisement. Counsel for the parties were requested to submit briefs in support of their respective contentions. The briefs of the parties have been received, and have been considered with all of the testimony, a transcript of which was furnished to the court by the claimant, along with the exhibits thereto, and the court now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The libeled article of food, consisting of 233 tins labeled in part, "Grove Brand * * * Whole Blakemore Strawberries Net Weight 30 lbs. Code 5258 Kelly Canning Co., Prairie Grove, Arkansas," was shipped in interstate commerce on or about May 25, 1958, by the Adair County Commission Company from Stilwell, Oklahoma, to the Kelly Canning Company, Prairie Grove, Arkansas, where the berries were packed and subsequently shipped for freezing to the Rogers Ice and Cold Storage Company, Rogers, Arkansas. The code number "5258" was adopted to indicate that the berries were shipped to the claimant on the 25th day of the 5th month of the year 1958.

2.

The Kelly Canning Company received the strawberries in question on May 26, 1958, and processed and packed them that evening. The processing and packing operation consisted of receiving, dumping, sorting, and washing the strawberries, and then adding sugar and placing them in 30-lb. tins. Sam Dickey, a sanitarian for the Arkansas State Board of Sanitation, observed the processing of lot No. 5258 at the Kelly Canning Company. Dickey reported to the owner of the cannery, John Kelly, that "questionable" strawberries were being packed. Following the processing operation in Prairie Grove, Arkansas, the strawberries were loaded on a truck and transported to the Rogers Ice and Cold Storage Company in Rogers, Arkansas. Dickey followed the truck to Rogers, and quarantined the 233 tins in lot No. 5258. The following day Mr. Dickey took samples of the berries he had quarantined and submitted them to the Arkansas State Board of Health.

3.

On June 23, 1958, Loren Gibson, agricultural grader for the U.S. Department of Agriculture, stationed in Fayetteville, Arkansas, took samples from 10 of the questioned tins located at the Rogers Ice and Cold Storage Company. Gibson chipped about 3 pounds from the top of the 10 tins and took the samples to his laboratory where he examined them. He checked 5 of the samples for "quality factors," color, firmness, and taste, and conducted a mold count on the remaining 5 samples, using the Howard method. This Howard test revealed a mold count range of 24 percent to 44 percent, with an average count of 32 percent. Gibson then certified the 10 tins which he had sampled, classifying 8 tins as U.S. Grade B and 2 tins as U.S. Grade C. The certificate issued by Gibson on June 23, 1958, was "reversed as to grade" by the Inspection Division of the Agricultural Marketing Service of the U.S. Department of Agriculture on January 21, 1959. The January 1959 certificate which reversed Gibson's June 1958 certificate bears the remark, "grade not certified account mold count of some samples slightly in excess of branch administrative guide." This occurred after the examination of post-seizure samples as set forth in finding No. 5.

4.

On August 26, 1958, Everett L. Atkinson, a food and drug inspector for the Federal Food and Drug Administration, stationed in Little Rock, Arkansas, took a core sample from 12 of the 233 tins in question and shipped the frozen samples in dry ice to the Division of Microbiology of the Food and Drug Administration in Washington, D.C. Four core samples were taken from each of the 12 tins.

The samples shipped by Atkinson were received in the Microbiology Division of the Food and Drug Administration in Washington, D.C., by Frank R. Smith, a microanalyst, who has held that position since 1937. The samples were hard frozen when received. Smith thawed the samples and examined them for decomposition using the Howard Mold Count Method. By this test the strawberries are pulped, mixed thoroughly, and several tablespoonfuls are taken out for microscopic examination. The microscope is set at 100 magnification, and the pulp is placed on a special microscope slide. The chemist in charge examines 25 tiny fields of view on each slide, and two slides are examined for each sample. The count of positive fields is noted, and the percentage of mold in the sample is calculated. To constitute a positive field, there must be sufficient mold to extend across 1/6th of the diameter of a field. Smith's examination revealed a mold count for the 12 samples ranging from 54 percent to 82 percent, with an average count of 67.9 percent.

After making his examination, Smith placed a portion of each sample in a small bottle containing formaldehyde, so as to check the growth of any mold or any other decomposition in the berries, and delivered the 12 samples to Fred Dunn, the Head of the Inspection Branch of the Fruit and Vegetable Division of the Agricultural Marketing Service, U.S. Department of Agriculture.

Upon receipt of the samples Dunn examined them for mold, using the Howard Mold Count Method described above. His examination revealed a mold count range of from 43 percent to 80 percent, with an average count of 69.2 percent.

5.

On January 13, 1959, in response to an order from this court, a post-seizure sample was taken from the questioned 233 tins of lot 5258 by Everett L. Atkinson of the Little Rock office of the Food and Drug Administration, and Loren Gibson of Fayetteville, Arkansas, referred to in finding of fact No. 3, a grader for the Agricultural Marketing Service of the U.S. Department of Agriculture. Samples were taken from 13 of the 233 tins. Core samples were taken as in the first instance, and in addition about 3 pounds of the top of each sample can was chipped out. The samples were marked, packed in dry ice, and shipped to the Food and Drug Administration in Washington, D.C. One of the 13 samples taken was from the same tin that had been sampled in August of 1958. The other 12 samples were from different tins.

These samples were received in a hard frozen condition in Washington. The Food and Drug Administration retained the "core" samples and delivered the chipped samples to the Agricultural Marketing Service.

The even-numbered core samples were examined for mold by Frank R. Smith and the odd-numbered core samples were examined by W.G. Helsel, a long-time microanalyst in this Division. The Howard Mold Count Method was used in these examinations. The even-numbered samples examined by Smith had a mold count range of from 50 percent to 84 percent, with an average mold count of 68.8 percent. The odd-numbered samples examined by Helsel had a range of 34 percent to 94 percent, with an average mold count of 71.5 percent. Following the examination of these "core" samples, a portion of each sample bottled in formaldehyde was delivered to Fred Dunn of the Agricultural Marketing Service where another Howard Mold Count was taken and revealed a range of 42 percent to 90 percent, with an average mold count of 71.7 percent.

The chipped-out samples, which were delivered directly to the Agricultural Marketing Service, were examined for mold, using the same Howard method by Fred Dunn. His examination reflected a range of 42 percent to ...


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