Seeds Of Deception ((FULL))

Think about it: None of us called for genetic manipulation of seeds. Not one of us said, yes, this new technology will benefit me, my family, and my community. Yet today most of us are eating them, while kept completely in the dark as to the hazards we may be facing - for ourselves, our children, and the farming ecosystems on which our lives depend.

Seeds of Deception

The District Court dismissed a complaint filed as a libel in rem on information by the United States Attorney for the Northern District of Ohio for the seizure and condemnation of two bags, more or less, each containing 110 pounds of poppy seeds, shipped in interstate commerce from Brooklyn, New York, to Cleveland, Ohio; and ordered the seized goods returned to the owner. The libel was grounded upon averments that the poppy seeds were adulterated within the meaning of Section 402(b) (3) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. 342(b) (3), which provides: "A food shall be deemed to be adulterated * * * (3) if damage or inferiority has been concealed in any manner;" and of Section 402(b) (4) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. 342(b) (4), which provides: "A food shall be deemed to be adulterated * * * (4) if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it *125 appear better or of greater value than it is."

Upon the evidence in the case, the district court found that the owner and claimant of the seized merchandise, the Arco Products Company of Brooklyn, New York, had shipped the poppy seeds in interstate commerce to jobbers, and not to ultimate consumers; that the poppy seeds were intended to be used as food and components of food for human consumption; and prior to shipment had been colored by charcoal pigment made from burnt poppy seeds. It was found further that these poppy seeds, products of British India, were naturally of a whitish color and, when uncolored, had a market value ranging from ten to eleven cents a pound; but, when artificially colored, they had a market value of about twenty-two-and-a-half cents a pound. There was a marked difference in the market value of these British India poppy seeds, on the one hand, and Dutch blue and Turkish grey poppy seeds, on the other. The latter were much more expensive. The coloring of the Dutch and Turkish seeds was natural and they were somewhat larger than the British India, white poppy seeds.

The Dutch and Turkish seeds have been used extensively indeed, almost exclusively for decorative and flavoring purposes in the manufacture of bread, rolls and other baked goods. After the United States became involved in World War II, the Dutch blue and Turkish grey poppy seeds were hardly procurable at all, making the British India product the only available poppy seeds on the market.

The Arco Products Company devised a method of coloring British India white poppy seeds with charcoal pigment, made from burnt poppy seeds; so that, as found by the district court, the "British India white poppy seeds resembled in color and shape the genuine Dutch blue and Turkish grey poppy seeds, except that the artificially colored seeds were of a size smaller, and had a more uniformly black or dark grey shade than the genuine Dutch blue and Turkish grey poppy seeds respectively."

The court found further that there is little, if any, difference in flavor, and no difference in food value of the naturally and the artificially colored seeds; and that a person inexperienced in such matters would fail to notice the difference between the Dutch blue or Turkish grey poppy seeds and the artificially colored British India white poppy seeds. It was found that the purpose of the Arco Products Company in the coloration was to impart "eye appeal" to the white poppy seeds which were shipped by it in interstate commerce, to jobbers only, in bags labeled: "Produce of British India. Artificially colored with vegetable colors."

Pointing out that jobbers in the trade were well aware of the difference between the poppy seeds, whether in their natural state or artificially colored, and could not have been deceived by the artificial coloring, particularly where the seeds were shipped in bags with informative labels, the district court concluded its findings of fact with this important finding:

"The addition of charcoal pigment made from burnt poppy seeds to the British India white poppy seeds tended to conceal the price inferiority of said poppy seeds in the hands of the ultimate consumers, but not the jobbers, and tended to make them appear better and of greater value than they were in that the inferiority thereof had been concealed by addition of substance, charcoal, and that the substance, charcoal, had been added thereto so as to make it appear better or of greater value than it was."

In a memorandum opinion, 54 F. Supp. 706, 707, the district judge stated that, on all the testimony, the questions presented were whether the article is adulterated within the meaning of Section 342(b) (3), Title 21 U.S.C.A., in that inferiority has been concealed by addition of charcoal; and whether the article is adulterated within the meaning of Section 342(b) (4), 21 U. S.C.A., in that charcoal has been added thereto so as to make the article appear better or of greater value than it is. He thus answered the questions which he put: "If those questions are answered with reference to retailers and consumers they would have to be answered in the affirmative. If, however, they are answered with reference to jobbers, the evidence convinces the court that they should have a negative answer. In spite of the fact that the British India seeds on close examination reveal a smaller size and a more uniformly black or very dark grey shade and that Dutch blue and Turkish seeds are somewhat larger and contain variegated shades of color, still a cursory look at the seeds would reveal no difference. Anyone inexperienced *126 in such matters would fail to note the difference between the naturally dark seeds and the artificially colored seeds. While the difference in flavor, if any, is slight and there is no difference in food value, there is nevertheless a difference in commercial value or price, and the coloring of the white seeds does conceal that price inferiority and does make the white seeds appear better or of greater value than they are."

Inasmuch as jobbers, who were the consignees, were well aware of the distinctions between the seeds, the district court reasoned that "the legality of the product must be tested by its condition at the time of seizure and not by what its condition might be after it has passed beyond interstate commerce channels or been transposed from the packages in which it was shipped or changed in form or content"; that "if the public is to be protected against the sale of colored poppy seeds unlabeled or improperly labeled it will require state law and state administration"; that "if the interstate shipment is not a `palming off' of something inferior it is not in violation of the statute merely because it has a potentiality of deception"; and that it having been found that the seeds involved in the case were labeled and billed for what they actually were, the court should not treat them as contraband "merely because of the possibility that they might be used subsequently to deceive."

We are unable to agree with the reasoning of the district court; and think that, the article having been found to be adulterated within the meaning of Sections 342(b) (3) and 342(b) (4), insofar as consumers are concerned, the seized seeds should have been condemned under the Federal Food, Drug and Cosmetic Act. To set up deception of jobbers as the criterion for the determination of the issue of condemnation was, in our judgment, clearly erroneous. The express language of the pertinent provisions of the Act of Congress is reasonably susceptible of no such narrow interpretation. The district court found as a fact that the inferiority of the food had been concealed; that an added substance had made it appear better or of greater value than it is insofar as the ultimate consumer was affected; and that an inexperienced person would fail to detect the difference between the natural Dutch blue or Turkish grey poppy seeds and the artificially colored British India white seeds, shipped in interstate commerce by the Arco Products Company.

Appellee stresses United States v. Ten Cases, More or Less, Bred Spred, 8 Cir., 49 F.2d 87. In that case, there was no showing of the inferiority of the food product sought to be condemned. Here, the poppy seeds shipped by the appellee were of less commercial or market value; were of smaller size; and were artificially colored so that, as found by the district court, "a person inexperienced in such matters would fail to notice the difference between the Dutch blue or Turkish grey poppy seeds and the artificially colored British India white poppy seeds." The Eighth Circuit decision, therefore, gainsays nothing which we have said in this opinion, and, moreover, adheres to the doctrine that the primary purpose of the Food and Drugs Act is to prevent injury to the public health by the transportation in interstate *129 commerce of misbranded and adulterated foods. 041b061a72