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UNITED STATES v. 40 CASES, ETC.

No. 295, Docket 26724.

289 F.2d 343 (1961)

UNITED STATES of America, Appellant, v. 40 CASES, MORE OR LESS OF Six One Gallon Cans Article Labeled in Part (Can) PINOCCHIO BRAND 75% CORN, PEANUT OIL AND SOYA BEAN OIL BLENDED WITH 25% PURE OLIVE OIL — Packed by A. M. S. Packing Company, New York — at Syracuse, New York, A. M. S. Packing Co., Appellee.

United States Court of Appeals Second Circuit.

Decided April 19, 1961.

Attorney(s) appearing for the Case

William W. Goodrich, Asst. Gen. Counsel, U. S. Dept. of Health, Education & Welfare, Washington, D. C. (Theodore F. Bowes, U. S. Atty., Northern Dist. of New York, Syracuse, N. Y., Sydney Brodie, Duane L. Nelson, Dept. of Justice, Washington, D. C., Joanne S. Sisk, U. S. Dept. of Health, Education & Welfare, Washington, D. C., on the brief), for appellant.

Julius Zizmor, New York City, for appellee.

Before LUMBARD, Chief Judge, MADDEN, Judge, United States Court of Claims, and WATERMAN, Circuit Judge.

LUMBARD, Chief Judge.

The single question before us on this appeal is whether § 304(a) of the Federal Food, Drug, and Cosmetic Act, 21 U.S. C.A. § 334(a), authorizes the United States to proceed against and seize mislabeled or adulterated cans of blended vegetable oils mixed entirely within the State of New York from various oils shipped under proper labels from other states and foreign countries. Section 304(a) permits seizure of food which is "adulterated...

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