Flemming v. Florida Citrus Exch.

PETITIONER: Flemming
RESPONDENT: Florida Citrus Exch.
LOCATION: Fargo, North Dakota

DOCKET NO.: 27
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 358 US 153 (1958)
ARGUED: Nov 17, 1958
DECIDED: Dec 15, 1958

Facts of the case

Question

Media for Flemming v. Florida Citrus Exch.

Audio Transcription for Oral Argument - November 17, 1958 (Part 2) in Flemming v. Florida Citrus Exch.

Audio Transcription for Oral Argument - November 17, 1958 (Part 1) in Flemming v. Florida Citrus Exch.

Earl Warren:

Number 27, Arthur Flemming, Secretary of Health, Education and Welfare, Petitioner, versus Florida Citrus Exchange, Frank R. Schell, et al.

Mr. Goodrich, you may proceed.

William W. Goodrich:

Mr. Chief Justice, may it please the Court.

This case is concerned with the problem of poisonous coal-tar colors in the nation's foods.

Congress has provided that the Secretary of Health, Education and Welfare shall promulgate regulation providing for the listing of coal-tar colors that are harmless and suitable for use in foods and for the certification of batches of such colors with or without harmless -- I mean, without harmless diluent.

These regulations are to be promulgated after public proceedings on the basis of evidence and are subject to judicial review in the United States Courts of Appeals.

In 1939, after a hearing, the color FD&C Red 32 was placed on the list for unrestricted use in foods, drugs and cosmetics.

In 1947 to 1950, there developed certain scientific and congressional unrest over the possible toxicity of a number of the coal-tar colors, particularly the oil-soluble colors.

So, the Food and Drug Administration of the Department of Health, Education and Welfare undertook a new scientific appraisal of the toxic potential of these colors.

Study was initiated in 1951 and continued until 1953.

The method of studying the colors was to feed them in small amounts to test animals, rats and dog, which would be -- could be kept under a controlled environment, their feed and other circumstances watched.

They could be observed during their lifetime, sacrificed in autopsy at the end of the experiment.

When the experiment was over, the Department frankly called the industry representatives and -- and gave it the result saying that in the Department's opinion, the colors have proved to be toxic and not harmless.

A hearing was scheduled held in 1954.

Hearing lasted only a day.

The sole scientific evidence was presented by the United States Government by one witness, a Dr. Vos.

He testified that the color was fed at various levels to rats and to dogs.

At 2% in the diet of rats killed all the rats within a week.

At 1%, all the rats were dead in 12 days at a 0.5% in 21 days.

The lower levels were fed down to a thousand parts per million which is a tenth of 1% in the diet, and at the lowest level fed there were distinct injuries to the animals when they were all toxic, the injuries being to heart, liver, spleen and to the muscular dystrophy activities of the body.

Dogs fed at somewhat lower levels, 400 parts and 100 parts per million.

At 400 parts, all -- all the dogs involved died.

At 100 parts, one of four dogs sickened and died.

The least toxic of the three colors involved was the only one that had been involved in a human episode of poisoning.

Orange 1, it had been involved in an acute poisoning and the symptom which it produced was diarrhea, the objective symptom it being the same symptom produced in the test animal.

Felix Frankfurter:

Mr. Goodrich.

William W. Goodrich:

Yes, sir.

Felix Frankfurter:

I could appreciate your details more if you would tell us to what purpose do you submit them.

William W. Goodrich:

I'm submitting them for -- to the purpose of showing that the color through scientific evidence was shown to be not a harmless one, but a toxic one.

And on this undisputed evidence, the Secretary so found and the Court of Appeals for the Second Circuit as well as for the Fifth Circuit upheld that fairly.