Before DUFFY, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
This is an appeal by the United States from the judgments in the combined prosecution of four libels (designated in the District Court as 54-C-1754, 54-C-1820, 54-C-1833 and 55-C-70) condemning approximately 10,370 cases of tomato paste as "adulterated" within the meaning of 21 U.S.C.A. § 334(a). The paste was canned by the Smith Canning Company in Clearfield, Utah, and shipped to Chicago where it was seized by the United States Marshal.
The libels in actions 54-C-1754 and 55-C-70 alleged that the paste seized thereunder was "adulterated," in that it had been prepared under "insanitary conditions" as defined by 21 U.S.C.A. § 342(a)(4). The libels, as amended, filed in cases 54-C-1820 and 54-C-1833 charged that the paste involved in those cases was adulterated because it had been prepared under insanitary conditions whereby it may have become contaminated with filth, Section 342(a)(4); and because it consisted wholly or in part of a "filthy, putrid, or decomposed substance" as defined by 21 U.S.C.A. § 342(a)(3): decomposed tomato material in number 54-C-1833, and decomposed tomato material and insect parts in number 54-C-1820.
After an extensive hearing, the record of which comprises some 1700 pages, the trial judge found the issues against the Government with regard to all but a small amount of tomato paste seized in case number 54-C-1820. With the exception of that small amount, the seized tomato paste was ordered released to the claimant owner.
The Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C.A. § 301 et seq., provides that any article of food in interstate commerce that is "adulterated or misbranded" may be seized and condemned, 21 U.S.C.A. § 334(a). The Act provides the following definition of "adulterated":
"A food shall be deemed to be adulterted -
"(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 become contaminated with filth, or whereby it may have been rendered injurious to health * * *." 21 U.S.C.A. § 342.
Despite the plain language of the section it has been generally held that the two "if" clauses in subsection (3) above are disjunctive, and that the words "otherwise unfit for food" do not limit the first part of the subsection which bands food in whole or in part filthy, etc., as adulterated. United States v. 449 Cases, etc., 2 Cir., 212 F.2d 567, 45 A.L.R.2d 846; Bruce's Juices, Inc., v. United States, 5 Cir., 194 F.2d 935; Salamonie Packing Co. v. United States, 8 Cir., 165 F.2d 205; United States v. 44 Cases, etc., D.C., 101 F.Supp. 658; United States v. 935 Cases, etc., D.C., 65 F.Supp. 503. However, there have been dissenting voices. See Judge Frank's dissenting opinion in United States v. 449 Cases, etc., 2 Cir., 212 F.2d at page 575.
We find it impossible to agree with the accepted interpretation of Section 342(a)(3), 21 U.S.C.A., without ignor&ng com-letely the w rd "otherwise" therein.The majority opinion in United States v. 449 Cases, etc., supra [212 F.2d 569] seems to argue that this is just what should be done, because the Meat Inspection Act of 1907 continually uses the phrase "unfit for human food" sometimes with "otherwise" and sometimes without it.It has also been suggested that Congress wanted to protect "the aesthetic tastes and sensibilities of the consuming public," and therefore intended that food containing "any filthy, putrid, or decomposed substance" be deemed adulterated whether it was "unfit for food" or not. United States v. 133 Cases of Tomato Paste, D.C., 22 F.Supp. 515, 516. Congress may also have wanted to set a standard of purity well above what was required for the health of the consuming public, knowing that not every food product can be individually inspected. If the standard is set at the level of what is "fit for food" or not injurious to health, the occasional substandard item that slips by both industry and Government scrutiny will be hazardous to the health of the consumer. A minimum standard of purity above what is actually the level of danger will, however, allow fewer products to drop below that level. A high standard will also have the same effect by encouraging more careful industry inspection. Therefore, we prefer to follow the general rule in interpreting Section 342(a)(3), although admitting that we are unable to answer Judge Frank as to why Congress put the word "otherwise" in the section.
The interpretation we have chosen has one serious disadvantage which most courts have recognized. It sets a standard that if strictly enforced, would ban all processed food from interstate commerce. A scientist with a microscope could find filthy, putrid, and decomposed substances in almost any canned food we eat. (The substances which it is claimed render the respondent "adulterated" were visible only through a microscope.) The conclusion is inescapable that if we are to follow the majority of the decisions which have interpreted 21 U.S.C.A. § 342(a)(3), without imposing some limitation, the Pure Food and Drug Administration would be at liberty to seize this or any other food it chose to seize. And there could be no effective judicial review except perhaps for fraud, collusion, or some such dishonest procedure. Such a position is not indefensible. Congress has obviously found it difficult, if not impossible, to express a definite statutory standard of purity that will receive uniform interpretation. And this court is acutely aware of the fact that it is not the proper body to more narrowly define broad standards in this area so that they can be applied in a particular case. Courts know neither what is necessary for the health of the consuming public nor what can reasonably be expected from the canning industry. Furthermore, this is not a determination that should be made individually for each case on the basis of expert testimony. The Food and Drug Administration should set definite standards in each industry which, if reasonable, and in line with expressed Congressional intent, would have the force of law.
Despite our limitations as a court and the fact that Section 342(a)(3), 21 U.S.C.A., does not give us any power to limit the inescapable force of the words, "if it consists in whole or in part of any filthy, putrid, or decomposed substance," we do not think that Congress intended to let the acts of the agency under this subsection go completely without limitation. In Section 346, 21 U.S.C.A., Congress directed that the administrator provide tolerances for amounts of poisonous or deleterious substances that cannot be avoided and are not injurious to health. It would not be reasonable to think that Congress would direct the administrator to set tolerances for the allowance of safe amounts of poisons in food and then declare that the presence of small amounts of filth, etc., which would admittedly have no effect upon health "adulterates" food and justifies its seizure. We believe that if the fact that almost all food contains some filthy, putrid, and decomposed substances had been called to the attention of Congress, that body would have directed the administrator to provide reasonable and acceptable tolerances for these substances just as it did in the case of poisons.
The spirit of 21 U.S.C.A. §§ 346 and 346a demands that we give effect to what reasonable standards have been set by the Food and Drug Administration in the area involved in this case, and determine them as best we can where they have not yet been established. The decomposed tomato material which the respondent is accused of containing is commonly referred to as rot. A tomato containing rot is simply a tomato parts of which have begun to decompose. This is not at all uncommon and such fruits are perfectly good if all of the decomposed portions can be cut out. Several different things cause tomatoes to decompose but by far the most common cause is mold. Because of this fact there has been developed a technique known as the Howard Mold Count which purports to estimate the amount of decomposition or rotting that has gone on in the tomatoes from which paste or juice has been made by measuring the amount of mold present in the finished product. The presence of mold proves that some rotting has taken place, but the absence of mold does not prove that no rotting has occurred. Add to this the fact that the Howard Mold Count system is susceptible to a fair degree of error in determining the amount of mold in a substance, and we have a rather inadequate method of measuring the amount of decomposition. Nevertheless, it seems to be the only practical method known at the present time, and has received the approval of both the Government and the food industry.*fn1 The Food and Drug Administrator with industry cooperation has arrived at a tolerance for tomato paste which is expressed as 40 per cent under the Howard Mold Count method of measurement. The Administration has announced that it will not seize tomato paste on the basis of mold count alone unless that count is over 40 per cent. We, in our search for standards in this area, accept this administrative tolerance as a proper measure of what approximated amount of decomposition is allowable in tomato paste. A properly obtained mold count of over 40 per cent will, therefore, be considered sufficient grounds for seizing tomato paste if the Food and Drug Administrator chooses to do so.
The record in this case does not disclose any established tolerances for what is termed "filth" in tomato paste: worm fragments, insects and insect fragments, fly eggs, etc. We can only judge on the basis of the ...