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MILLET, PIT AND SEED COMPANY,
INC.
vs.
UNITED STATES OF AMERICA, ET
AL.; UNITED STATES OF AMERICA
v.
AN ARTICLE OF FOOD AND DRUG,
ETC.
Civ. Nos. 3-77-172, 3-77-180 United States district Court For The Eastern District Of Tennessee, Northern
Division
436 F. Supp. 84, 1977 U.S. dist.
Decision May 30, 1977
Seed company brought civil rights action against United States, various agents
of the United States, state, and various state agents seeking damages for
defendants' allegedly unlawful seizure of plaintiff's apricot kernels, and
United States brought action seeking forfeiture of apricot kernels pursuant to
Federal Food, Drug, and Cosmetic Act. The District Court, Robert L. Taylor, J.,
held that: (1) potentially poisonous amygdalin found naturally in apricot
kernels was insufficient to render kernels injurious to health under ordinary
conditions and usage, and therefore, apricot kernels could not be condemned as
adulterated food on ground that they were injurious or poisonous within meaning
of Food, Drug, and Cosmetic Act; (2) apricot kernels were not shown to have been
inedible for average person under ordinary conditions, and therefore, such
kernels were not "unfit for food" within meaning of the Act; (3)
apricot kernels sold in their natural state as food supplements were not
"drugs" within meaning of the Act and could not be seized by
Government; (4) United States and State of Tennessee would be dismissed as
improper defendants in seed company's civil rights action; (5) federal officials
would be dismissed in seed company's action in view of fact that such officials
were not acting under color of state law at times in question, and (6) seed
company could not recover from state agents, in view of fact that state agents
at time in question were acting in good faith. Order accordingly. West Headnotes 178 Food 178k5 k. Purity and Quality. Test for determining whether substance is an "added substance" within
meaning of Federal Food, Drug, and Cosmetic Act is whether it occurs naturally
in the food. Federal Food, Drug, and Cosmetic Act, ァァ 1 et seq., 402(a)(1), 21
U.S.C.A. ァァ 301 et seq., 342(a)(1). 178 Food 178k5 k. Purity and Quality. Potentially poisonous amygdalin found in apricot kernels was not an "added
substance" within meaning of Federal Food, Drug, and Cosmetic Act, in view
of fact that amygdalin occurred naturally in apricot kernels. Federal Food,
Drug, and Cosmetic Act, ァァ 1 et seq., 402(a)(1), 21
U.S.C.A. ァァ 301 et seq., 342(a)(1). 178 Food 178k24 Searches, Seizures, and Forfeitures 178k24(1) k. In General. Potentially poisonous amygdalin found naturally in apricot kernels was
insufficient to render kernels injurious to health under ordinary conditions and
usage, and therefore, apricot kernels could not be condemned as adulterated food
on ground that they were injurious or poisonous within meaning of Federal Food,
Drug, and Cosmetic Act. Federal Food, Drug, and Cosmetic Act, ァァ 1 et seq.,
402(a)(1), 21
U.S.C.A. ァァ 301 et seq., 342(a)(1). 178 Food 178k5 k. Purity and Quality. Within meaning of Federal Food, Drug, and Cosmetic Act, a finding of unfitness
for food must be based on proof that, although food item did not meet other
definitions of adulterated food, it was "otherwise unfit for food";
such finding can be made only when proof demonstrates that article of food was
inedible for average person under ordinary conditions. Federal Food, Drug, and
Cosmetic Act, ァ 402(a)(3), 21
U.S.C.A. ァ 342(a)(3). 178 Food 178k5 k. Purity and Quality. Apricot kernels containing potentially poisonous amygdalin were not shown to
have been inedible for average person under ordinary conditions, and therefore,
such kernels were not "unfit for food" within meaning of Federal Food,
Drug, and Cosmetic Act. Federal Food, Drug, and Cosmetic Act, ァ 402(a)(3), 21
U.S.C.A. ァ 342(a)(3). 138 Drugs and Narcotics 138I Drugs and Druggists in General 138k2 Federal Regulation 138k4 k. Adulteration and Misbranding in General. 178 Food 178k5 k. Purity and Quality. In determining intended use of given article for purposes of Federal Food, Drug,
and Cosmetic Act, court must seek to ascertain intent of claimant by looking to
all facts and circumstances shown at trial; in determining intent of claimant
engaged in distribution of article, court should consider not only claimant's
own assertions, but also the label, accompanying label, promotional claims,
advertising, and any other relevant source, and statements made by claimant
through virtually any medium are relevant to such inquiry. Federal Food, Drug,
and Cosmetic Act, ァ 201(g)(1), 21
U.S.C.A. ァ 321(g)(1). 138 Drugs and Narcotics 138I Drugs and Druggists in General 138k2 Federal Regulation 138k3 k. Drugs or Devices Within Regulations. While seller's knowledge of consumers' uses for his product is a factor to be
considered in determining intended use of article for purposes of Federal Food,
Drug, and Cosmetic Act, it is not true that if any consumers use product as
drug, such use, if known by seller, is determinative. Federal Food, Drug, and
Cosmetic Act, ァ 201(g)(1), 21
U.S.C.A. ァ 321(g)(1). 138 Drugs and Narcotics 138I Drugs and Druggists in General 138k2 Federal Regulation 138k3 k. Drugs or Devices Within Regulations. 138 Drugs and Narcotics 138I Drugs and Druggists in General 138k25 Seizure and Forfeiture 138k26 k. Property Subject and Grounds. Documents which were written by owner of seed company approximately two years
before he began to sell apricot kernels and which dealt primarily with peach
kernels and their alleged value in prevention of cancer were insufficient to
establish that owner of seed company intended apricot kernels to be used for
prevention of cancer, in view of owner's testimony that he did not hold apricot
kernels out as substance to be used in treatment of cancer, and in view of fact
that apricot kernels were not in pill, capsule or liquid form and were not
packaged in manner suggesting that they were a drug; therefore, apricot kernels
sold in their natural state as food supplements were not "drugs"
within meaning of Federal Food, Drug, and Cosmetic Act, and could not be seized
by Government. Federal Food, Drug, and Cosmetic Act, ァ 201(g)(1), 21
U.S.C.A. ァ 321(g)(1). 170A Federal Civil Procedure 170AII Parties 170AII(J) Defects, Objections and Amendments 170Ak387 Misjoinder 170Ak388 k. Striking Out or Dropping Parties. United States and State of Tennessee would be dismissed as improper defendants
in seed company's civil rights action to recover for the allegedly unlawful
seizure of seed company's apricot kernels. 42
U.S.C.A. ァ 1983. 170A Federal Civil Procedure 170AII Parties 170AII(J) Defects, Objections and Amendments 170Ak387 Misjoinder 170Ak388 k. Striking Out or Dropping Parties. Federal officials would be dismissed as defendants in seed company's civil
rights action to recover for the allegedly unlawful seizure of seed company's
apricot kernels, in view of fact that such federal officials were not acting
under color of state law at times in question. 42
U.S.C.A. ァ 1983. 78 Civil Rights 78II Federal Remedies 78II(B) Civil Actions 78II(B)1 In General 78k211 Privilege or Immunity; Good Faith and Probable Cause 78k214 Governmental Agencies 78k214(3) k. States and State Officers and Agencies. (Formerly 78k13.10) Seed company could not recover from state agents for intentional violation of
its constitutional rights arising out of the allegedly unlawful seizure of seed
company's apricot kernels, in view of fact that state agents at time in question
were acting in good faith. 42
U.S.C.A. ァ 1983. *85 W. P. Boone Dougherty, Robert W. Ritchie, Knoxville, Tenn., for plaintiff. John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., Paul Ragan, Rockville, Md.,
Douglas E. Jones, Staff Atty., Dept. of Agriculture of Tennessee, Nashville,
Tenn., for defendants. *86 MEMORANDUM ROBERT L. TAYLOR, District Judge. We have for consideration two suits, the first of which is styled Millet, Pit
and Seed Company, Inc. v. United States of America, et al, Civ. 3-77-172. In
that case the State of Tennessee embargoed or tagged a number of cases of
apricot kernels belonging to plaintiff, Millet, Pit and Seed Company, and valued
at approximately $164,000.00. Douglas Heinsohn, who is the principal owner of
the seed company, filed a complaint on May 6, 1977 against the United States,
Secretary of Health, Education and Welfare, Califano, other agents of the United
States, Robert Reeves and Roy G. Stipe (who are both agents of the State of
Tennessee), and the State of Tennessee. It is alleged that on April 15, 1977, the defendants, acting under color of
state statutes and regulations and participating in a conspiracy, embargoed and
seized a quantity of apricot kernels owned by Douglas L. Heinsohn (the complaint
was later amended to name Millet, Pit and Seed Company as the plaintiff),
without legal justification and in violation of the Fourth, Fifth and Fourteenth
Amendments to the Federal Constitution, the Federal Food, Drug and Cosmetic Act,
and in violation of Title
42 U.S.C. ァ 1983. More specifically, it is alleged that on the above mentioned date, Norman
Miller, an investigator for the Federal Food and Drug Administration, and Roy G.
Stipe, an agent for the Department of Agriculture, Food and Drug Division of the
State of Tennessee, acting in concert with the defendants Reeves, Jancarek, and
certain other defendants who are federal employees, visited the Munford
Refrigerated Warehouse and embargoed and detained 6,701 cartons of apricot
kernels owned by the plaintiff and stored in the warehouse. It is further alleged that the defendant Stipe, pursuant to the authority and
direction of Reeves, and without complying with the provisions of the Tennessee
Food, Drug and Cosmetic Act, turned the further enforcement action over to
defendant Miller, acting pursuant to the authority and direction of Jancarek,
all of which enforcement action was under color of state law, namely, T.C.A. ァ
52-101 et seq., and more particularly, T.C.A. ァ 52-106. It is the plaintiff's theory that all of the actions of the defendants were
under color of state law and the rules and regulations of the Department of
Agriculture, Food and Drug Division, State of Tennessee, and were part of a
conspiracy and subterfuge by the defendants to circumvent and evade applicable federal
law, to-wit, the Federal Food, Drug and Cosmetic Act, 21
U.S.C. s 301 et seq. It is alleged that such actions were unlawful because
the apricot kernels were seized and detained in the absence of a finding of or
having probable cause to believe that the kernels were adulterated, as required
by T.C.A. ァ 52-106. Plaintiff claims he has sustained serious and extensive
damages on account of the seizure, and seeks damages in the sum of
$1,000,000.00. Plaintiff sought a hearing in the matter as expeditiously as possible requiring
the defendants to show cause why they should not release plaintiff's property,
and following the hearing, the issuance of an injunction requiring the
defendants to release to plaintiff the apricot kernels. The Federal Government has moved to dismiss the complaint because, after this
suit was instituted, the Federal Government seized the kernels pursuant to a
libel proceeding filed on May 12, 1977 under the Federal Food, Drug and Cosmetic
Act. Thus, the United States argues that any challenge to the Federal
Government's seizure must be litigated in the pending libel proceedings and that
equitable relief is not appropriate due to the pendency of such proceedings. The State of Tennessee, Reeves and Stipe have likewise moved to dismiss on the
ground that the Court lacks jurisdiction because plaintiff has not availed
itself of the method of review provided in T.C.A. ァ 27-901 et seq. They further
assert that the relief sought by the plaintiff concerning the return of the
kernels is a moot issue since the kernels are currently under seizure of *87 the federal marshals. Finally, the State of Tennessee correctly asserts that
it is not a person under 42
U.S.C. ァ 1983. The second suit is that of the United States v. An Article of Food and Drug,
etc., Civ. 3-77-180, in which the aforementioned apricot kernels were seized, on
May 12, 1977, by the federal marshals under authority of an arrest warrant
signed by the Clerk of this Court, issued pursuant to a libel for forfeiture
under the Federal Food, Drug and Cosmetic Act (the Act), 21
U.S.C. ァ 301 et seq., filed by the United States Attorney for this
District. Millet, Pit and Seed Company, Inc. has intervened in this proceeding
and filed a claim to said kernels. A motion for summary judgment has been made by the claimant, Millet, Pit and
Seed Company, based upon the theory that: (1) claimant sold the kernels as a
food and not a drug, therefore the drug provisions of the Act are not
applicable; (2) the kernels are not poisonous within the meaning of the Act; and
(3) the kernels are not unfit for food. [FN1] It is ORDERED that the motion for summary judgment be, and the same
hereby is, denied, because obviously there are material facts in dispute. We now
consider each case on its merits.
FN1. Claimant has also filed a
motion to dismiss the complaint upon the technical ground that the complaint
in this cause was not verified on oath. The Sixth Circuit Court of Appeals has
held that verification is not necessary. United
States v. 935 cases, etc., 136 F.2d 523 (6th Cir. 1943).
I. Condemnation Case (3-77-180)A. Government's Claim That
Kernels Are an Adulterated Food. The United States first alleges that the seized apricot kernels are subject to
condemnation because they constitute an "adulterated food" within the
meaning of the Federal Food, Drug and Cosmetic Act, 21
U.S.C. ァ 301 et seq. The charge that the kernels are an adulterated food is
based on two separate provisions of the Act. Section
342 contains many definitions of adulterated food, including the two
provisions at issue here. The first provision relied on by the Government defines a food as being
adulterated: "If it bears or contains any poisonous or deleterious substance which may
render it injurious to health; but in case the substance is not an added
substance such food shall not be considered adulterated under this clause if the
quantity of such substance in such food does not ordinarily render it injurious
to health". (emphasis added). 21
U.S.C. ァ 342(a)(1). The second provision relied on by the Government defines a
food as being adulterated: ". . . if it is otherwise unfit for food." 21
U.S.C. ァ 342(a)(3). As to the first provision, the Court finds that the potentially poisonous
substance (amygdalin) found in these apricot kernels is not an "added
substance" within the meaning of the Act. [FN2]
FN2. The Government charges
that the kernels are poisonous because amygdalin contains cyanide which, if
exposed to enzymes, releases a toxic gas known as hydrocyanic acid.
[1][2] The test for determining whether a substance is an added substance is whether it
occurs naturally in the food. See United
States v. An Article of Food, etc., 395 F.Supp. 1184 (S.D.N.Y.1975). It is
obvious from the evidence presented to the Court that the potentially poisonous
substance in apricot kernels (amygdalin) occurs naturally in the kernels.
Therefore, the United States must prove that the kernels contain a quantity of
the poisonous substance sufficient to render them injurious to health under
ordinary conditions and usage. [3] Based on the testimony of expert
witnesses presented by both the Government and the claimant, the Court is of the
opinion that apricot kernels do not contain sufficient
amounts of poisonous substance that might render them ordinarily injurious to
health. The evidence demonstrates that ordinary use of these kernels as a food *88 would not be injurious to the health of the consumer. The Supreme Court, in an opinion rendered in 1914, quoted one of the
Congressional sponsors of the original Food and Drugs Act of 1906, a predecessor
of the Act involved here, as follows: "As to the use of the term 'poisonous,' let me state that everything which
contains poison is not poison. It depends on the quantity and the combination. A
very large majority of the things consumed by the human family contain, under
analysis, some kind of poison, but it depends upon the combination, the chemical
relation which it bears to the body in which it exists as to whether or not it
is dangerous to take into the human system." United
States v. Lexington Mill Co., 232 U.S. 399, 412, 34 S.Ct. 337, 341, 58 L.Ed. 658
(1914). We have such a substance here. Amygdalin occurs naturally in approximately
twelve-hundred different fruits, vegetables, grains and seeds, including
strawberries, lima beans, barley, rye, apple seeds, peach kernels and cherry
pits. So far as the Court has been advised, none of these substances has been
condemned by the FDA as being adulterated solely by reason of its amygdalin
content. Most substances, if consumed in excessive quantities, will
produce some adverse effects in some individuals. One highly qualified
government witness testified that excessive quantities of common table salt can
produce consequences harmful to the ordinary person. The Government has produced
evidence which tends to establish that the ingestion of excessive quantities of
apricot kernels may produce headaches and nausea in some individuals,
particularly those who are weakened by disease. [FN3] Claimant has introduced persuasive evidence to the contrary, including
the testimony of a medical doctor who, in an experiment, ingested one-half pound
(approximately 400) of the unpleasant tasting kernels in one day without
suffering adverse effects.
FN3. The Government contends
that the Court must limit its inquiry into the class of potential users to
cancer victims, and asserts that cancer victims are more susceptible to
toxicity than healthy persons. The proof shows, however, that a large
proportion of those who consume apricot kernels are healthy persons.
Be that as it may, we are concerned here with ordinary usage under ordinary
conditions. Having considered the evidence of record, the Court finds that the
amygdalin content of apricot kernels is not sufficiently great to render the kernels
injurious to health under ordinary conditions and usage. Accordingly, the
kernels cannot be condemned as an adulterated food on the alleged ground that
they may be injurious and poisonous within the meaning of the Act. [4][5] As to the Government's second ground for condemning the kernels as an
adulterated food, the Government has produced little evidence which would tend
to establish that these kernels are "unfit for food." This provision
is a separate and independent basis for a finding that a food is adulterated.
See United
States v. 484 Bags, etc., 423 F.2d 839 (5th Cir. 1970). A finding of
unfitness for food must be based on proof that, although the food item did not
meet the other definitions of an adulterated food, it was "otherwise unfit
for food." Such a finding can be made only when the proof demonstrates that
the article of food was inedible for the average person under ordinary
conditions. See United
States v. 24 Cases, etc., 87 F.Supp. 826 (D.Me.1949). The Government has
failed to prove that the kernels are unfit for food as contemplated by the Act. The Court finds that the seized kernels are not an adulterated food within the
meaning of the Act and cannot be condemned on that ground. However, this does
not end our inquiry, as the United States also charges in the libel of
information that the kernels are "drugs" as that term is defined in
the Act, and that the kernels fail to meet the labeling requirements imposed on
drugs under the Act. *89 B. Are the Kernels Drugs? The term "drug" is defined in 21
U.S.C. ァ 321(g)(1) as including: "(A)rticles intended for use in the diagnosis, cure, mitigation, treatment,
or prevention of disease in man or other animals . . . ." The courts have held that it is the intended use which determines whether or not
an article is a drug. E. g., Rutherford
v. United States, 542 F.2d 1137 (10th Cir. 1976); United
States v. An Article . . . Sudden Change, 409 F.2d 734 (2d Cir. 1969); Hanson
v. United States, 417 F.Supp. 30 (D.Minn.1976). The Sixth Circuit Court of
Appeals has held that ordinary honey must be classified as a drug when it is
sold for therapeutic purposes. United
States v. 250 Jars, etc., 344 F.2d 288 (1965). [6] In determining the intended use of
a given article, the Court must seek to ascertain the intent of the claimant by
looking to all the facts and circumstances shown at trial. The cases emphasize
that, in determining the intent of a claimant engaged in the distribution of the
article, the Court should consider not only the claimant's own assertions, but
also the "label, accompanying label, promotional claims, advertising, and
any other relevant source." Hanson
v. United States, supra at 35. Statements made by a claimant through
virtually any medium are relevant to this inquiry. See United States v. An
Article . . . Sudden Change, supra. [7] Only one claimant has intervened in
these proceedings, Millet, Pit and Seed Company. The proof
shows that it is a corporation managed and owned solely by Heinsohn.
Accordingly, the Court considers the intent manifested by Heinsohn to be highly
relevant to these proceedings. Heinsohn testified that he sold the apricot
kernels solely as a food supplement. [FN4] His testimony was positive and unequivocal on the issue of the
intended use of the articles. He swore that he made no representations to his
customers regarding the efficacy of apricot kernels as a treatment or cure for
cancer or any other disease. He sold the kernels in bags labeled: "Millet,
Pit & Seed Co. Natural* APRICOT KERNELS. NOT LESS THAN ONE POUND AT TIME OF
PACKAGING. HOT AIR DRIED TO REMOVE EXCESS MOISTURE. . . . * NO ADDITIVES."
FN4. The proof showed that some
persons consume apricot kernels out of the belief that the kernels serve to
prevent cancer. However, Heinsohn testified that he makes no attempt to
ascertain what consumers of his kernels plan to use them for, because he
considers such information to be the consumer's "business". While
the seller's knowledge of the consumers' uses for his product is a factor to
be considered, we do not agree with the apparent theory of the government that
if any consumers use a product as a drug, such use, if known by the seller, is
determinative on this issue. Carried to its logical extreme, this would mean
that every merchant who sells carrots to the public with knowledge that some
of his consumers
believe that the ingestion of carrots prevents eye diseases holds the carrots
out for use as a drug, as that term is defined in the Act.
[8] The Court has considered the
documentary evidence introduced by the Government to establish that the
claimant, in fact, intended that the apricot kernels be used for the prevention
and treatment of a disease and is thus a drug. The first document is a letter
from Heinsohn dated December 2, 1974 and printed on Millet, Pit and Seed Company
stationery. It contains the salutory greeting "Dear Friend." Almost
the entire letter refers to peach kernels, and only one sentence mentions
apricot kernels. The letter states, in substance, that one scientist believes
that the ingestion of eight to twelve peach kernels per day can prevent
malignancies from becoming clinical, and that peach kernels could be purchased
from the claimant. The letter does not state that the claimant had apricot
kernels for sale or would ever have any for sale. The second document is a letter dated January 5, 1975 and addressed to Heinsohn
and the Millet, Pit and Seed Company. The letter was sent by the scientist
referred to above, who in this letter evaluated the amygdalin content of the
peach kernels being sold by the claimant. Only one remark in *90 the letter contains any mention of apricot kernels; the apricot kernels were
referred to solely as a reference point for evaluating the amygdalin content of
peach kernels. The third document is a leaflet dated June 6, 1975 and
printed on Millet, Pit and Seed Company stationery. The leaflet deals primarily
with peach kernels and their alleged value in the prevention of cancer, and
repeats the references made in the first two documents to apricot kernels. One
additional comment is made to the effect that the FDA has banned the retail sale
of apricot kernels but has not banned the retail sale of peach kernels. Each of the above documents focuses upon peach kernels, which contain
approximately the same amount of amygdalin as apricot kernels. Although the
Government seeks to equate peach kernels with apricot kernels, there is no
evidence that the FDA has ever made any attempt to condemn peach kernels sold by
Heinsohn or anyone else. The proof shows that agents of the FDA inspected the
premises of Millet, Pit and Seed Company over two years ago, and Heinsohn was
most cooperative in showing them his stock of peach kernels and some of the
above documents. He asked the agents if there was anything wrong with the sale
of peach kernels, and the agents replied that they did not believe so, but would
advise him should they change their minds. With the exception of several
unknowing encounters with FDA undercover agents, Heinsohn had no further contact
with the FDA until the apricot kernels at issue were seized. The above documents [FN5] fail
even to intimate that Heinsohn had apricot kernels for sale. They were written
approximately two years before he began to sell apricot kernels. This
circumstantial evidence on the issue of intended use does
not outweigh the positive sworn testimony of Heinsohn and the other evidence of
record that he did not hold the apricot kernels out as a substance to be used in
the prevention and treatment of cancer. An additional factor in support of this
holding is the wholly natural state of the seized articles and the appearance of
their packaging. The articles are not in pill, capsule or liquid form, nor are
they packaged or labeled in a manner suggesting that they are a drug. They were
sold with no representations or warranties.
FN5. An additional exhibit
introduced by the Government is a letter and pamphlet mailed by Heinsohn to a
number of physicians. The letter requests that the physicians read the
pamphlet, which reported the results of a two-day physicians' workshop on
metabolic therapy. Metabolic therapy apparently refers to the prevention of
disease by diet control.
The Government further contends that Heinsohn intended that apricot kernels be
used for the prevention and treatment of disease because he is an advocate of
the use of a highly controversial substance known as "Laetrile" for
the prevention and treatment of cancer. It cannot be doubted that Heinsohn has
advocated the use of Laetrile as a supplement to conventional therapy for the
treatment of cancer. [FN6] Laetrile, which is derived from apricot kernels, contains a highly concentrated
dosage of amygdalin, the same substance that occurs
naturally in apricot kernels, and is generally administered intravenously or in
tablet form to cancer patients who believe in its efficacy. See Rutherford v.
United States, supra. The Government seeks to equate Laetrile with apricot
kernels so as to link all statements made by Heinsohn about Laetrile to the
apricot kernels.
FN6. Heinsohn's wife was
afflicted with cancer. He believes that her use of Laetrile in addition to
conventional cancer therapy has enabled her to overcome the ravages of the
disease. He is an ardent supporter of Laetrile and has not been hesitant to
make his views known publicly.
This is not a Laetrile case. We are concerned here only with apricot kernels.
Although Heinsohn admitted that he has purchased Laetrile in liquid and tablet
form for use by his wife, the Government does not seek to condemn Heinsohn's
supply of Laetrile. It seeks to condemn apricot kernels, the likes of which may
be found in most supermarkets throughout the country and in many of the
so-called health food stores. *91 He sold the kernels without making any representations or warranties about
their efficacy to anyone who wished to buy them for whatever purpose. Under
these circumstances we cannot agree with the Government that Heinsohn's
statements about Laetrile must be translated into statements about apricot
kernels. Having considered all the evidence of record, the Court is
of the opinion, and finds, that the apricot kernels at issue were not intended
by the claimant to be used for the prevention and treatment of a disease.
Accordingly, they are not a drug as that term is defined in the Act. For the foregoing reasons, it is ordered that the seized articles be returned,
forthwith, to the claimant, Millet, Pit and Seed Company, because they are not
in violation of any provision of the Act, and therefore are not subject to
condemnation. The Court has been advised by the Marshal that the Government has
agreed to pay the storage costs of the articles for the period of time during
which they were under seizure by the United States. Having reached this decision, the Court emphasizes that we have dealt here only
with apricot kernels sold in their natural state as a food supplement. We hold
only that under the particular facts and circumstances shown at trial that the
apricot kernels at issue were neither adulterated nor sold for the prevention
and treatment of a disease. We further emphasize that this decision should not
be construed as placing this Court's imprimatur on the use of apricot kernels,
Laetrile or any other substance for the prevention and treatment of cancer. II. Civil Rights Case (3-77-172)[9] The State of Tennessee and the United States Government are both dismissed as
improper defendants in Millet, Pit and Seed Company's civil rights action
under 42
U.S.C. ァ 1983. [10] The individual federal officials
are also dismissed as they were not acting under color of State law at the times
in question. The Court further finds plaintiff's conspiracy theory to be without
merit. [11] As to the remaining two
defendants, Stipe and Reeves, the Court finds no basis upon which the plaintiff
could establish an intentional violation of its constitutional rights. Plaintiff
admitted that these defendants acted in good faith. Therefore, it is ORDERED
that plaintiff's action be, and the same hereby is, dismissed. Order Accordingly. D.C.Tenn. 1977. END OF DOCUMENT
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