In the Claimants' view the position of the F.D.A. is arbitrary and capricious and will result in significant financial harm. In United States v. 1322 Cans, Etc., 68 F. Supp. 881 (N.D.Ohio 1946) the Court stated that in such matters the F.D.A. is to determine the proper method for reconditioning. It is also worthy to note that the Consent Decree specifically authorized the F.D.A. to supervise and approve the reconditioning.
Therefore, the courts that have dealt with the issue presented in this case have held that it is proper to rely on the scientific expertise of the FDA in determining the acceptability of a reconditioning proposal and to require FDA approval of a reconditioning plan. United States v. Allan Drug Co., 357 F.2d 713 (10th Cir.), cert. denied, 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966); United States v. 1,322 Cans, More or Less, of Black Raspberry Puree, 68 F. Supp. 881 (N.D.Ohio 1946). In Allan, the Tenth Circuit addressed the meaning of the language of § 334(d)(1) as it applies to misbranded drugs.
The statute only that the court "may" order reconditioning as one of four wholly permissive choices. It is discretionary. United States v. Allan Drug Corp., 357 F.2d 713 (10th Cir.), cert. denied, 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966); Research Laboratories, Inc. v. United States, 167 F.2d 410 (9th Cir.), cert. denied, 335 U.S. 843, 69 S.Ct. 65, 93 L.Ed. 393 (1948); 338 Cartons, More or Less, of Butter v. United States, 165 F.2d 728 (4th Cir. 1947); United States v. 76,552 Pounds of Frog Legs, 423 F. Supp. 329 (S.D.Tex. 1976); United States v. 1322 Cans, More or Less, of Black Raspberry Puree, 68 F. Supp. 881 (N.D.Ohio 1946). As such, it cannot provide a basis for relief in this court.
" United States v. Allan Drug Corp., 357 F.2d 713, 719 (10th Cir. 1966), certiorari denied, 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131. See also United States v. 1,638 Cases of Adulterated Alcoholic Beverages, 624 F.2d 900, 902 (9th Cir. 1980) (quoting and following Allan Drug, supra); United States v. 1,322 Cans * * * Black Raspberry Puree, 68 F. Supp. 881, 881 (N.D.Ohio 1946). Here the district court undertook to make an independent de novo determination of the validity of claimant's relabeling without first condemning the devices as required by 21 U.S.C. § 334(a) and directing claimant to submit his proposal to the FDA as required by 21 U.S.C. § 334(d)(1).
It is well settled that the trial court, in a case of this kind, shall exercise its sound discretion as to whether the article shall be released under bond. United States v. Two Cans of Oil of Sweet Birch, etc., D.C.N.Y., 268 F. 866, 867; United States v. 143 Packages, etc., of Nue-Ovo, D.C.Wash., 51 F. Supp. 1, 2; United States v. 1322 Cans, More or Less, of Black Raspberry Puree, D.C.Ohio, 68 F. Supp. 881, 882. After careful consideration of the 1100-page record in this case, we are convinced that the court below exercised its discretion soundly and judiciously.
It, therefore, is clearly within the sound discretion of the trial court whether the reprocessing of a condemned article is to be allowed. United States v. 1322 Cans of Black Raspberry Puree, D.C., 68 F. Supp. 881; United States v. 143 Packages of Nue-Ovo, D.C., 51 F. Supp. 1; United States v. Two Cans of Oil, D.C., 268 F. 866. And, of course, this decision of the trial judge can be reversed by us on appeal only for a manifest abuse of discretion by the trial judge. From the evidence submitted at the condemnation trial the jury found that the butter in question consisted in part of decomposed substance and in part of filthy substance in substantial enough quantity to be adulterated within the terms of the Act, 21 U.S.C.A. § 342(a)(3).