## Facts

- The United States brought an in rem condemnation action against 298 cases of “Ski Slide Brand” canned asparagus center cuts under the Federal Food, Drug, and Cosmetic Act (FDCA).
- The product consisted of lower-priced “center cuts” (about 95–100 cuts per can) sold as an alternative to higher-priced asparagus tips.
- The government alleged the asparagus was excessively woody and fibrous and therefore “otherwise unfit for food.”
- Government witnesses testified that about 25% or more of the cuts were inedible and that the product should be condemned.
- The defense presented testimony from a cooking-school director who tested 100 pieces and set aside only 5–6 pieces as inedible.
- With counsel’s consent, the judge personally ate a can over three days and found only one notably tough piece and a few slivers, which he treated as trivial; he found the product edible, nutritious, and acceptable for its price.

## Issues

1. Whether canned asparagus center cuts containing some tough or fibrous pieces are “adulterated” as “otherwise unfit for food” under 21 U.S.C. § 342(a)(3).
2. Whether minor inedible portions, without filth, putridity, or decomposition, justify condemnation of the entire lot.

## Decision

- The court denied the libel for condemnation.
- The court held the asparagus was not adulterated and not “otherwise unfit for food” under the FDCA.
- The court credited the defense evidence and the judge’s own test over the government’s witnesses as to overall edibility.
- The court treated the limited tough pieces as *de minimis* defects insufficient to render the product unfit.

## Legal Principles

- Under 21 U.S.C. § 342(a)(3), food is adulterated if it contains filthy, putrid, or decomposed matter, or is “otherwise unfit for food”; the “unfit” inquiry focuses on whether the product is reasonably edible as food.
- “Unfit for food” is assessed by an ordinary-consumer standard; the statute does not require condemnation based on the expectations of unusually exacting consumers.
- Minor defects that do not materially affect the product’s overall edibility may be treated as *de minimis* and will not support condemnation under the “otherwise unfit” prong.

## Conclusion

The court concluded that the presence of a small number of tough or fibrous asparagus pieces did not make the canned center cuts “otherwise unfit for food,” and it refused to condemn a wholesome, edible product based on minor textural imperfections.


United States v. 298 Cases, More or Less, Ski Slide Brand Asparagus, 88 F. Supp. 450 (D. Or. 1949)