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UNITED STATES v. 310 CANS

January 28, 1959

UNITED STATES OF AMERICA
v.
310 CANS, MORE OR LESS, ETC., LABELED IN PART: "MODERN EGG PRODUCTS, INC., FROZEN WHOLE EGGS, 30 LBS. NET WEIGHT". UNITED STATES OF AMERICA V. 272 CANS, MORE OR LESS, OF AN ARTICLE LABELED IN PART: "204 FROZEN WHOLE EGGS * * * 30 LBS. NET WT. * * * 56174 207".



The opinion of the court was delivered by: Igoe, District Judge.

1. On or about May 21, 1958, June 16, 1958, and July 28, 1958, Modern Egg Products, Inc., Nashville, Tennessee, shipped from Tennessee to Chicago, Illinois, consigned to Weinberg Bros. and Co., articles of food consisting respectively of 610, 539, and 272 30-pound cans, more or less, of frozen whole eggs.

2. On July 7, 1958, the United States of America filed a Libel of Information in civil action number 58 C 1230 charging that the articles of food shipped on May 21, 1958, and June 16, 1958, were adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(a)(3), in that they consisted wholly or in part of a decomposed substance by reason of the presence therein of decomposed eggs.

3. On September 12, 1958, the United States of America filed a Libel of Information in civil action number 58 C 1694 charging that the article of food shipped on July 28, 1958, was adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(a)(3), in that it consisted wholly or in part of a decomposed substance by reason of the presence therein of decomposed eggs.

4. Weinberg Bros. and Co., Chicago, Illinois, filed a claim of ownership and answer in each of the Libel proceedings and denied the allegation of adulteration.

5. The two causes were ordered consolidated and set for trial by the Court, without a jury.

6. It was stipulated that from the date of shipment from Nashville, Tennessee, and up to the present time, all of the cans of eggs have continuously been in hard frozen form and their quality and condition is the same as it was when introduced into interstate commerce.

7. Organoleptic examination by smell was made by inspectors of the Food and Drug Administration of: 74 cans randomly sampled from the shipment of May 21, 1958, and 21 of these gave off the odor of decomposed eggs; 20 cans randomly sampled from the shipment of June 16, 1958, and 9 of these gave off the odor of decomposed eggs; 20 cans randomly sampled from the shipment of July 28, 1958, and 15 of these gave off the odor of decomposed eggs.

8. The cans randomly selected and examined by inspectors of the Food and Drug Administration and physical samples taken therefrom by them for bacteriological and chemical examination by scientists of the Food and Drug Administration were representative of the quality and condition of the shipments of which they were a part.

9. At request of claimant, inspectors of the Department of Agriculture organoleptically examined by smell all of the cans from each of the shipments and determined that 4 cans of the May 21, 1958, shipment; 26 cans of the June 16, 1958, shipment; and 31 cans of the July 28, 1958, shipment smelled unsatisfactory.

10. All of the cans of eggs which smelled decomposed to the Food and Drug inspectors or unsatisfactory to the Department of Agriculture inspectors consisted in whole or in part of decomposed substances.

11. Some decomposed eggs do not have an odor and their presence in a can of frozen eggs cannot be determined by organoleptic examination but can be determined by bacteriological and chemical analyses.

12. The aroma of odoriferous decomposed eggs in a can of frozen whole eggs can be diluted out but the presence of such eggs can be determined by bacteriological and chemical analyses.

13. The physical samples collected by the Food and Drug inspectors were examined by an experienced bacteriologist of the United States Food and Drug Administration who found that the direct microscopic count of bacteria in the samples of the frozen eggs here involved was in the following range:

    May 21, 1958 Shipment     -   61,000,00    -    over 350,000,000
    June 16, 1958 Shipment    -   33,000,00    -    78,000,000
    July 28, 1958 Shipment    -   51,000,00    -    123,000,000

14. Physical samples collected by the Food and Drug inspectors were analyzed by an experienced Food and Drug Administration chemist whose chemical analyses of the samples of the frozen eggs here involved ...


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