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U.S. Supreme Court

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950)

Ewing v. Mytinger & Casselberry, Inc.

No. 568

Argued April 19-20, 1950

Decided May 29, 1950

339 U.S. 594


Section 304(a) of the Federal Food, Drug, and Cosmetic Act, as amended, permits multiple seizures of misbranded articles

"when the Administrator has probable cause to believe from facts found, without hearing, . . . that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would he in a material respect misleading to the injury or damage of the purchaser or consumer."

Upon the Administrator's finding, without a hearing, of probable cause to believe that the labeling of a vitamin product distributed by the appellee in interstate commerce was "misleading to the injury or damage of the purchaser or consumer," eleven seizures of the product were made and as many libel suits instituted over a four-month period. There was no claim that the product was harmful or dangerous to health. Appellee brought suit in the Federal District Court to have the multiple seizure provision of § 304(a) declared unconstitutional, and to dismiss all except the first libel suit.


1. The Due Process Clause of the Fifth Amendment does not require that there be afforded a hearing in connection with the administrative determination to make multiple seizures, but is satisfied by the opportunity which the claimant has for a full hearing before the court in the libel proceedings. Pp. 339 U. S. 598-600.

(a) In making the finding here involved, the administrative agency was merely determining whether a judicial proceeding should be instituted, subject to final determination by the Attorney General. Pp. 339 U. S. 598-599.

(b) Where only property rights are involved, the requirements of due process are satisfied if there is an opportunity for a hearing and a judicial determination at some stage. Pp. 339 U. S. 599-600.

2. The District Court had no jurisdiction to review the administrative determination of probable cause. Pp. 339 U. S. 600-602.

3. The fact that the preparation here involved is not dangerous to health does not require a different result, since the statutory scheme treats every "misbranded article" the same in this respect -- whether it is "dangerous to health," or its labeling is "fraudulent" or materially "misleading to the injury or damage of the purchaser or consumer." P. 339 U. S. 601.

Page 339 U. S. 595

4. Consolidation of the libel suits so that one trial may be had is the relief against multiplicity of suits afforded by the statute to the claimant of the seized goods. P. 339 U. S. 602.

87 F.Supp. 650, reversed.

In a suit brought by the appellee, the District Court enjoined the enforcement of the multiple seizure provision of § 304(a) of the Federal Food, Drug, and Cosmetic Act, as violative of the Due Process Clause of the Fifth Amendment of the Federal Constitution. 87 F.Supp. 650. On direct appeal to this Court, reversed, p. 339 U. S. 602.

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