Goodwin

MEMORANDUM OPINION

The evidence is persuasive that the best method to protect the public from diseases which can be transmitted through clams is to be sure the growing beds are free of contaminants. Therefore, the National Shellfish Sanitation Program is an appropriate means to meet this need. I am not convinced, however, that 21 U.S.C. § 381 (a) gives the Food and Drug Administration the power to implement it. I agree that the term “or otherwise” could be interpreted to mean the water certification program. However, the statute clearly requires that it must appear that there are unsanitary conditions or the article is adulterated. The lack of certification merely means that the Food and Drug Administration does not know because the waters have never been tested. If the situation is unknown, by simple definition it may not appear to be one way or the other.

The Government’s position is laudable, but its petition should be to the Congress for amendment, rather than to the courts.

However, under the present facts, this Court cannot say that the Food and Drug Administration is acting arbitrarily or capriciously in preventing the clams of the plaintiff from being imported from the…