United States v. 298 Cases

Full title: UNITED STATES v. 298 CASES, etc., SKI SLIDE BRAND ASPARAGUS, etc

Court: United States District Court, D. Oregon

Date published: May 9, 1949

88 F. Supp. 450 (D. Or. 1949)

Opinion

Civ. No. 4265.

May 9, 1949.

Henry L. Hess, U.S. Atty., and Gene B. Conklin, Asst. U.S. Atty., both of Portland, Or., for plaintiff.

W.J. Prendergast, Jr., of Portland, Or., for defendant.

McCOLLOCH, District Judge.

Defendant is an asparagus packer. One of his products is the center cut of the asparagus. This retails for 20¢ per can (1 lb. 3 oz.) containing 95 to 100 cuts, as compared with 40 to 45 cents per can for the choicer tips.

The Government contends that defendant's center cuts are fibrous and woody beyond the permissible limits set up by the Federal Food, Drug and Cosmetic Administration. Three witnesses for the Government said that they had each eaten a can (or attempted to) of defendant's cuts. The composite of their testimony was that 25% or more of the cuts were inedible, and the Government's witnesses condemned them as a food product.

On the other hand, the Director of Mary Cullen's Cottage found only 5 or 6 pieces out of 100 that she had to lay aside. Confronted with this conflict in testimony, I obtained counsels' consent to eat a can. This I have done, although I confess had I understood all the difficulties of the undertaking, I might not have been so bold.

To eat a can of asparagus, hand-running, as the saying is, is quite a chore. I took three days to eat the can. That, I can now state, is as much as an old protein user should attempt on his first venture into herbalism. I suspect the Government witnesses tried to eat their cans all at one time, and that may explain the severity of their judgment about defendant's asparagus. I can see where after 50 or 60 cuts, eaten without spelling oneself, one might become very particular.

My test more than confirmed Miss Laughton's good opinion of the cuts. She found 5 or 6 per cent. inedible, whereas I ate all of my can, and felt that I was helped by it. There was one runty, tough piece and two or three slivers, but I treated them as de minimis.

I agree with the Director of Mary Cullen's Cottage that this is an excellent product, particularly considering its low price. Not everybody in this country can "keep up with the Joneses" and eat only asparagus tips. Indeed it seems strange to me that the Government should be interested in keeping from the market a moderately priced, wholly nutritious food product. I should think in this period of declining income the Government's interest would be the other way. If Mr. Prendergast will prepare appropriate findings, I will give his client's center cuts a clean bill of health. They deserve it.