ELR Citation: ELR 20763
No(s). 73-1008 (7th Cir. Aug 28, 1974)

Residues of DDT and dieldrin, present in processed fish because of general pesticide pollution of the Great Lakes, are "food additives" within the meaning of the Food, Drug, and Cosmetic Act. Under the FDCA, pesticide chemicals are not considered food additives when applied to raw agricultural commodities pursuant to a tolerance issued by the government; the same chemical is permitted in processed food made from the raw agricultural product. In the case of the processed fish, however, no tolerance had been issued for the law product, and the pesticides were therefore food additives in the processed food. The government acted correctly in proceeding under §402(a)(2)(C) of the Act, which states that food is adulterated as a matter of law if it contains an additive which has not been shown to be safe by recognized scientific authority. The government was no required to prove that the finished food product itself had been or might be harmful to any human being. Since the industry had not requested any tolerance for dieldrin and DDT in the raw or processed fish, the Food and Drug Administration acted within its authority in enforcing action-level guidelines of .3 parts per million of dieldrin and 5 parts per million of DDT. Industry objections to the fairness of those standards should be addressed to the administrative agency issuing tolerances rather than to the court.

Counsel for Plaintiff
Howard Epstein
Gregory H. Horendon
Department of Justice
Washington, DC 20530

Charles J. Raubicheck
Forest P. Patterson
Food and Drug Administration
Dept. of HEW
Washington, DC 20204

Stephen C. Underwood, U.S. Attorney
U.S. Courthouse
Madison, WI 53701

James Thompson, U.S. Attorney
William T. Huyck
U.S. Courthouse
Chicago, IL 60604

Counsel for Defendants
Adrian P. Schoone
Roger C. McManus
Robert J. Grady
Schoone, McManus, Hanson & Grady
Suite L 12, Main Building
424 Lake Avenue
Racine, WI 53401

Patrick W. O'Brien
Watson B. Tucker
Mayer, Brown & Platt
231 South LaSalle Street
Chicago, IL 60604