Opinion
Civ. A. No. 82-3911.
January 13, 1983.
Wendy Hildreth, Asst. U.S. Atty., Nashville, Tenn., for plaintiff.
MEMORANDUM OPINION
This is an in rem action under the Federal Food, Drug, and Cosmetics Act, 21 U.S.C. § 301, et seq., for the forfeiture and condemnation of certain articles of new drug introduced or delivered for introduction into interstate commerce without approval of the requisite application therefor, 21 U.S.C. § 355(a). Upon the filing of the complaint herein, the clerk issued a warrant for the arrest of the articles that are the subject hereof, Rule C.(3), Supplemental Rules for Certain Admiralty and Maritime Claims, which warrant was served and executed by the marshal.
Subsequently, the United States attorney made a motion to cause public notice of this action and such arrest to be given in a specified newspaper to be designated therefor by this Court. Rule C.(4), Supplemental Rules, etc., supra. The notice thus proposed referred to the fact that such articles "* * * will be administratively forfeited pursuant to 19 U.S.C. § 1608 and will be disposed of according to law * * *" absent timely assertion of a claim or claims for remission or mitigation of forfeiture herein. Rule C.(6), Supplemental Rules, etc., supra.
It does not appear that the statute cited immediately hereinabove authorizes such a forfeiture administratively; it is an enforcement provision of the Tariff Act of 1930, 19 U.S.C. § 1202, et seq., and relates literally to the seizure, claim, and "judicial condemnation" of items after notice to enforce a forfeiture for violation of the customs-revenue statutes of the United States, see 19 U.S.C. § 1594. In an action for forfeiture, the property seized is to be disposed-of in the manner provided-for in the pertinent statute, Rule E.(9), Supplemental Rules, etc., supra ("In any action in rem to enforce a forfeiture for violation of a statute of the United States the property shall be disposed of as provided by statute.")
The pertinent statute herein appears to be 21 U.S.C. § 334, Seizure — Grounds and jurisdiction, which is a part of the Federal Food, Drug and Cosmetics Act, supra. Thereunder, the articles which are the subject hereof are liable to be proceeded against "* * * on a libel of information * * *," 21 U.S.C. § 334(a)(1), and, upon condemnation, "* * * to be disposed of by destruction or sale * * *," 21 U.S.C. § 334(d)(1); see United States v. X-Otag Plus Tablets, 602 F.2d 1387, 1391 (10th Cir. 1979).
For such reason, this Court must decline to order that public notice of this action and the arrest herein be given in the newspaper as thus requested.