Harrington, Edward F

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Food, Drug and Cosmetic Act—Statutory Construction—Coal-Tar Colors— Standard of Adulteration.—Flemming v. Florida Citrus Exchange.

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Boston College Law ReviewVolume 1Issue 1 Number 1 Article 1610-1-1959Food, Drug and Cosmetic Act—StatutoryConstruction—Coal-Tar Colors— Standard ofAdulteration.—Flemming v. Florida CitrusExchange.Edward F. HarringtonFollow this and additional works at: http://lawdigitalcommons.bc.edu/bclrPart of the Food and Drug Law CommonsThis Casenotes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been acceptedfor inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information,please contact nick.szydlowski@bc.edu.Recommended CitationEdward F. Harrington, Food, Drug and Cosmetic Act—Statutory Construction—Coal-Tar Colors—Standard of Adulteration.—Flemming v. Florida Citrus Exchange., 1 B.C.L. Rev. 112 (1959),http://lawdigitalcommons.bc.edu/bclr/vol1/iss1/16BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWmeans of access, there was a taking. Some courts hold that when the gradeof a road is changed with consequential damage to abutting property bothin the form of decreased valuation and of difficulties of access, it constitutesa taking," while other courts have held to the contrary. 7 These cases arenot different in their application of the principle discussed above, but onthe application of the facts to this principle and, therefore, difficult to rec-oncile.In all cases there appears to be a balancing of the burden to the prop-erty holder against the benefit to the public. The benefit to the publicoutweighed the burden to the plaintiff in Cities Service: The result of thiscase is based on the judgment of the court as to the degree of interferenceand as to whether or not it was an interference sufficient to establish ataking. This degree of interference necessary to constitute a taking is noteasily defined. The court considers the extent of the diminution of valueof the property. "When it reaches a certain magnitude, in most if not allcases, there must be an exercise of eminent domain . . ."" "The rule seemsto be deducible from the decisions of the courts . . . that if the owner ofproperty, because of the permanent physical improvement itself, suffersdamages . . . 'distinguished from mere inconvenience, he has a right toaction . . "On the whole, having regard to the smallness of the injury,the nature of the evil to be avoided" 1" the determination of whether thereis a taking is reached. The judgment of the court as to the degree of inter-ference necessary to constitute a taking depends on the diminution of prop-erty value, permanency of the interference, the nature of the act itselfand whether the act is beneficial to the public. Thus the judgment of thecourt in Cities Service was determined.IRWIN N. ALBERTSFood, Drug and Cosmetic Act—Statutory Construction—Coal-TarColors—Standard of Adulteration.—Flemming v. Florida Citrus Ex-cbange.1—A petition was brought to review an order of the Secretary ofHealth, Education and Welfare, which disallowed the use of coal-tar in thecoloring of oranges. The United States Court of Appeals for the 5th Circuitset aside the order,2 holding that, even though the coal-tar coloring (Red32) was per se toxic, it did not adulterate the oranges as proscribed bythe Food, Drug and Cosmetic Act of l938, 3 since the quantity of poison0 foal v. Chicago, 301 Ill. App. 536, 23 N.E.2d 237 (1939) ; Tulsa v. Hindman, 128Okla. 169, 261 Pac. 910 (1927) ; Cucurullo v. City of New Orleans, 229 La. 463, 86So.2d 103 (1956).T State v. Snider, 131 W. Va. 650, 49 S.E.2d 853 (1948) ; Cantrell v. Pike County,255 S.W.2d 988 (Ky. 1953).8 Pennsylvania Coal Co. v. Mahon et al., supra note 2, at 413.0 Tulsa v. Hindman, 128 Okla. 169, 171, 261 Pac. 910, 911 (1927).10 Rideout v. Knox, 148 Mass. 368, 374, 19 N.E. 390, 393 (1889).1 358 U.S. 153 (1958).2 Florida Citrus Exchange v. Folsom, 246 F.2d 850 (5th Cir. 1957).Act June 25, 1938, c. 675, 1 1, 52 Stat. 1040, 21 U.S.C. U 301-392.112CASE NOTESwas not such as would render the food article injurious to the health of theconsumer. On appeal, the United States Supreme Court reversed, unani-mously holding,, per Brennan, J., that, although the "level of ingestion"of this particular red coal-tar involved in human consumption is harmless,proof that such color had poisonous properties allowed the Secretary ofHealth, Education and Welfare to remove the certification of Red 32 as"harmless and suitable for use" as an external coloring for oranges.In the leading case of United States v. Lexington Mill and Elev. Co.4(1914), the United States Supreme Court, in interpreting the original Foodand Drugs Act of 1906,5 reviewed the condemnation of a "lot" of flour, towhich had been added a poisonous ingredient in a quantity found to beso small that the health of the consumer could not thereby be injured.At the time the Food and Drugs Act provided that an article of food shouldbe deemed to be adulterated if it "contain any added poisonous or otheradded deleterious ingredient which may render an article injurious to thehealth."5 It was contended in Lexington that it is the character, not thequantity, of the added substance which is to determine whether there hasbeen an adulteration of the article under the statute. The Court held, how-ever, that if the flour, with the additive, cannot injure the health of a con-sumer, it may not be condemned under the act, despite the fact that theadditive is poisonous. This relative standard remained the law until theprincipal case.The Food and Drugs Act of 1906 was repealed by the enactment ofthe Food, Drug and Cosmetics Act of 1938. For the first time, in theprincipal case, the Court was called upon to construe the adulteration pro-visions of the later act. The Court in reaching its decision held that thelanguage of the provisions gave evidence of a legislative intent to departfrom the traditional relative rule, by which a product was deemed adulter-ated only if the deleterious additive was found to be in such quantities asto make the product injurious to the health of the consumer. The Courtdisallowed any addition to food of any coal-tar colors not certified by theSecretary to be harmless after examination by him of the color substancesalone.The Supreme Court stressed the fact that the original Food and DrugsAct of 1906 did not deal with coal-tar colors specifically, but only withpoisonous substances generally; but by the expressed and novel provisionsf § 402(c); § 406(b)] of the Act of 1938, Congress carefully distinguishedthe treatment to be given by the Secretary to toxic coal colors.The Court stated that the new provision § 402(c) established a separatetest: that food should be deemed adulterated if it contains a coal-tar colornot certified by the Secretary in conformity with the standard enunciatedin § 406(b), which provides for certification of "coal-tar colors that areharmless and suitable for use in food." From a literal reading of the abovestandard, the Court construed "harmless" in an absolute sense; absolute,4 232 U.S. 399 (1914).5 Act June 30, 1906, c. 3915, § 1, 34 Stat. 768, 21 U.S.C. f§ 1-215.6 Act June 30, 1906, c. 3915, 7, 34 Stat. 769, 21 U.S.C. 8.113BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWin that. the nature and prOperties of the added, ingredient would .be testedby reference to the particular ingredient alone, and not in 'its -empericcontext.This absolute construction of "harmless" has the effect of .establishinga standard in which the analysis will concentrate on the color per • se,rather than an examination of the effect of the use of color on the articleitself. ••That a legal principle, which had reigned from the earliest 'days ofthe Food and Dfugs Act, would be modified by Congr6s . withdut the' barestexplanatiOn, that the court would change the test of adulteration' by aconstruction based on semantics and not on economic practicalities andthe history of the orange 'economy, and that even tolerances' of "harmfulingredients" would not be allbwed because of '§ 402(c)ls flat prohibitionagainst the use of non-certified colors, display once 'again the danger ofbeing trapped in the',inire of literal ideology, and `not basing a decision' ona traditional 'rule that stands on the facts of the matter..	 • •EDWARD F. HARRINGTONLabor Relations—Arbitration—Condition Precedent to, an Action forDamages for Wrongful Discharge.—Woodward Iron Co. v. Ware.1—A discharged employee brought an action at law for breach of his employ-ment contract. He had not submitted his grievance to the ,union withinfive days, as provided by the collective bargaining agreement. He allegedthat his discharge violated terms of the collective bargaining. agreementwhich were . incorporated into his employment contract. Judgment wasrendered 'for the plaintiff. On appeal, affirmed; primary resort to grievanceprocedure is unnecessary. where the employee elects to consider his dis-charge as final and he seeks damages rather than reinstatement.Courts are divided' on the question whether exhaustion of grievancemachinery is a condition precedent to an action at law in discharge cases.At common law contracts to arbitrate were revocabIe. 2 Seemingly, courtswhich do not require exhaustion of grievance procedures are , perpetuatingthis common law rule in the field of labor relations. 8 Other courts haveadopted the view that public policy favors the arbitration device and there-fore, where the right to damages for wrongful discharge is dependent upona collective bargaining agreement, contractual remedies must be exhaustedbefore judicial remedies will be available' Under the latter view judicialrelief is available, however, when the union is hostile to the claim of an261 F.2d 138, 142 (5th Cir., 1958). The case had been removed from the Alabamacourts on the basis of diversity of citizenship.2 Simpson, Specific Enforcement of Arbitration Contracts, 83 U. Pa. L. Rev. 160(1934).Lammond v. Aleo Manufacturing Co., 243 N.C. 749, 92 S.E.2d 143 (1956).• Jorgenson v. Pennsylvania R.R. Co., 25 N.J. 541, 138 A.2d 24 (1958) ; Payne v.Pullman Co., 13 Ill. App, 2d 105; 141 N.E.2d 83 (1957); Williams v. Pacific ElectricR.R. Co., 147 Cal. App. 2d 1, 304 P.2d 715 (App. Div. 2d D 1956).114

Food, Drug and Cosmetic Act—Statutory Construction—Coal-Tar Colors— Standard of Adulteration.—Flemming v. Florida Citrus Exchange.

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