United States v. Two Cans of Oil of Sweet Birch & Three Cans of Oil of Gaultheria

268 F. 866 | S.D.N.Y. | 1920

AUGUSTUS N. HAND, District Judge

(after stating the facts as above). The claimant transported in interstate commerce the above-named merchandise, which was misbranded. The articles seized had a much lower market value than the articles which the false labels described. They were branded as oil of birch and oil of wintergreen, which are used in the manufacture of confectionery. The imitations so branded contained but a small percentage of the ingredients, and consisted mainly of a chemical of different composition.

The claimant asks to he allowed to furnish a bond and to have the merchandise released, so that he can sell it by correct description. It is not denied that the merchandise is not deleterious. The release of these articles after bond is in my opinion discretionary with the court. Section 10 of the Food and Drugs Act (Comp. St. § 8726) provides that any article of food that is adulterated or misbranded and is a subject of interstate commerce “shall be liable to be proceeded against in any District Court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation.” There follows, in a subsequent clause in section 10, supra, a provision empowering “the court * * * by order [to] direct that such articles may be delivered to the owner thereof.”

This is not mandatory, but clearly permissive. The claimant here has been convicted of a similar offense before, and has numerous other proceedings pending against him. I regard the application as addressed wholly to my discretion, and I decline to exercise it in favor of the claimant under existing circumstances. The misbranding was fraudulent and injurious to competitors in the trade.

The motion to release on bond is denied.