United States v. Articles of Drug Consisting of Following: An Undetermined Quantity of 100-Capsule Bottles, Labeled in Part: (Bottle) Imported From New Zealand Neptone Lyophilizied-Homogenized Mussels

ORDER

On April 22, 1983, the Food and Drug Administration (FDA) seized quantities of claimant Aquaculture Corporation’s (Aquaculture) green lipped mussel product, Neptone. The product was seized at the processing facilities of E. Hirschberg Freeze Drying, Inc. (Hirschberg), located in San Leandro, California. Hirschberg is not a party to this litigation.

Although the seizure took place on April 22, the warrant for arrest of property was not issued until April 26, or executed by the Marshal until May 13. The seizure apparently was made pursuant to an embargo notice issued by the State of California, which read in part: “Court directed FDA seizure re Misbranding et al.” This “embargo” amounted to a warrantless arrest or seizure of property, which claimant contends violated its Fourth Amendment rights and should be quashed.

It is clear that the FDA was involved in the execution of the state embargo. Indeed, FDA agent Roh was present at and participated in the April 22 action. When the federal government “has a hand in” a seizure “before the objective is accomplished,” it is a federal seizure and federal constitutional standards apply. Lustig v. United States, 338 U.S. 74, 78-79 ,…