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§ 104. Minor Border Importations Private Importations.

"Inquiry has frequently been made regarding the application of Regulation 331 (requiring a declaration to be attached to the invoice) to foods and drugs brought into the United States in small quantities by farmers living near the borders. One correspondent says: 'Farmers along the borders are in the habit of occasionally bringing in, in their own teams, maple sugar in small quantities, also butter and like articles of food products of their own raising, and offering the same for entry at the different offices on the frontier. The main question is as to whether or not the affidavits and other proof required by the pure food law shall be required in these instances of minor importations of this class of articles.' Considering the nature of these importations, it is held that Regulation 33 does not apply to them, and that they may be imported without the declaration. Such products are subject to inspection, however, and if found to be in violation of the law will be excluded."2 "Recently certain shipments of foods and of drugs have been offered for entry into the United States, and an examination has disclosed the fact that they were adulterated or misbranded under the food and drugs Act. The shipments were refused entry into the United States, whereupon representations were made to the department that the materials were for consumption by importers or for free distribution among the friends or employees of the importers, and not for trading purposes, and the department was requested on this account to allow the entry of the misbranded or adulterated food or drug.

"The provisions of the Food and Drugs Act make no distinction between foods and drugs imported for consumption or free distribution by the importer and foods and drugs imported for trading purposes. The law provides that no misbranded or adulterated foods or drugs shall be admitted. "Notice is given that these so-called private importations

1 Concerning invoices of foods or drugs shipped to the United States to have attached to them a declara

tion of the shippers, made before

a United States consular officer. 2 F. I. D. 60.

will be subjected to the same restrictions as ordinary imports.

173

§ 105. Shipment Beyond Jurisdiction of the United States.

"The time allowed the importer for representations regarding the shipment may be extended at his request to permit him to secure such evidence as he desires, provided that this extension of time does not entail any expense to the Department of Agriculture. If at the expiration of this time, in view of the data secured in inspecting the sample and such evidence as may have been submitted by the manufacturers or importers, it appears that the shipment can not be legally imported into the United States, the Secretary of Agriculture shall request the Secretary of the Treasury to refuse to deliver the shipment in question to the consignee, and to require its reshipment beyond the jurisdiction of the United States."

§ 106. Imported Teas.

By the Act of March 2, 18971 provision is made for the inspection of imported teas. This Act prohibits the importation of any merchandise as tea which is inferior in purity, quality and fitness for consumption to standards established by a board appointed by the Secretary of the Treasury. Under the standards so established teas can not be colored, but there is no requirement in that Act that color must be mentioned in the label. The importation or sale in original packages of teas, whether colored or not, which are inferior to the standards established under this Act, is permitted. Colored teas, if repacked in the United States and put into interstate commerce, are subject to the provisions of the Food and Drugs Act of 1906 so far as regards the use of colors; but unless coloring matter is added by the person repacking teas within the United States, the matter will be made the subject

3 F. I. D. 88.

1

Regulation 38.

129 U. S. Stat. at Large 604; U. S. Comp. St. 1901, p. 3194.

of inquiry by the Department of Agriculture. This statute of 1907 is constitutional. It is not an unconstitutional delegation of power to the Secretary of the Treasury to forbid the importation of teas inferior to the government standards of purity, quality and fitness for consumption, and which authorizes him to establish such standards upon the recommendation of a board of tea experts. The statute merely leaves to the Secretary the executive duty to effectuate the legislative policy as therein declared. No individual has such a vested right to trade with foreign nations as precludes Congress in the exercise of its plenary power from prohibiting, by this Tea Inspection Act or considerations of public policy, the importation of teas inferior to the government standards, on the theory that the importer is thereby deprived of his property without due process of law. And even though the statute be construed as not affording an opportunity for the importer to have a hearing, yet it is not invalid on the ground that he is denied a hearing wthout due process of law. Nor is due process of law denied by the Act when it commands the destruction of teas not exported within six months after their final rejection as not entitled to admission into the United States because inferior to the government standards. The action of the board of appraisers in rejecting impure and unwholesome tea is a decision of fact by a tribunal to which the matter is referred by law, and its decision can not be reviewed by the courts on the theory that their action was illegal, because no standard as to the kind of tea was established by the board of experts appointed by the Secretary of the Treasury.3

§ 107. Declaration Concerning Imported Food and Drugs. The form of the declaration to be signed by the shipper,

2 Buttfield V. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Buttfield v. Bidwell, 192 U. S. 498, 24 Sup. Ct. 356, 48 L. Ed. 536; Buttfield v. United States,

192 U. S. 499, 24 Sup. Ct. 356, 48 L. Ed. 537.

3 San Lung v. Jackson, 85 Fed. 502.

and which must be attached to the invoice of food or drug products, is prescribed by Regulation 33. Regulations 34 to 38 inclusive relate to the importation of food and drugs.

§ 108. Seizure in Transit.

Section ten of the Food and Drugs Act provides for the seizure of adulterated food or drugs when in transit from one State to another, or from a Territory to a State, or to the District of Columbia, or vice versa. If the statute were construed to prohibit a United States district attorney bringing an action unless the Secretary of Agriculture shall first certify to him that there has been a violation of the statute as shown by an analysis in the department of foods and drugs, it is difficult to see how this provision can be enforced. But such is not the construction placed upon it by the courts. The district attorney may file a libel against adulterated goods without having been directed to do so by the Secretary of Agriculture.1

§ 109. Application of Regulations.

"These regulations shall not apply to domestic meat and meat-food products which are prepared, transported or sold in interstate or foreign commerce under the meat-inspection law and the regulations of the Secretary of Agriculture made thereunder."

§ 110. Alteration and Amendment of Regulations.

"These regulations may be altered or amended at any time, without previous notice, with the concurrence of the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor.”

1 United States v. Fifty Barrels of Whisky, 165 Fed. 966; United States v. Knowlton Danderine Co.,

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170 Fed. 449; affirmed 175 Fed.
1022. Notice of Judgment 284.
1 Regulation 39.
1 Regulation 40.

§ 111. State Legislation Necessary.

Much of the food consumed never crosses the boundary of a State or Territory, and therefore is in no way affected by the Food and Drugs Act of 1906. In fact, the great bulk of the food consumed is produced in the State of its consumption. It is not so much so with drugs, but still it is true with reference to quite a large percentage of them. In order, therefore, to fully protect the public from impure and adulterated food and drugs, State legislation must supplement the Federal legislation. Happily, that in a great measure has been done. The Food and Drugs Act of 1906 has given a great impetus to State legislation, it serving as a model in a number of instances; and in a number of instances the Federal regulations have likewise served as a model. Uniformity in the laws on this subject, as well as in the regulations, is greatly to be desired, thereby preventing confusion and rendering trade and commerce more easy.

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