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United States of America v. 24/94 Kg Bags

October 17, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
24/94 KG BAGS, MORE OR LESS, OF AN ARTICLE OF FOOD, LABELED IN PART: "*** SENNA PODS *** PRODUCE OF INDIA *** NETT 94 KGS *** ITEM# W1520 *** LOT # 110220 *** NT. WT. # 211.2 LBS *** COUNTRY OF ORIGIN: INDIA ***"
AND ALL OTHER ARTICLES OF FOOD IN VARIOUS SIZES AND TYPES OF CONTAINERS (EXCLUDING METAL AND ) GLASS CONTAINERS) THAT ARE LOCATED ANYWHERE ON THE PREMISES OF SAN FRANCISCO HERB AND NATURAL FOOD COMPANY, 47444 KATO ROAD, FREMONT, CALIFORNIA, WHICH ARE UNLABELED OR
AFFIXED WITH LABELS BEARING, AMONG OTHER THINGS, THE NAME AND ADDRESS OF THE MANUFACTURER, PACKER, OR DISTRIBUTOR LOCATED OUTSIDE THE STATE OF CALIFORNIA, OR WHICH ARE OTHERWISE DETERMINED TO CONSIST IN WHOLE OR IN PART OF COMPONENTS THAT HAVE ORIGINATED FROM OUTSIDE THE STATE OF CALIFORNIA,
DEFENDANTS.



The opinion of the court was delivered by: Elizabeth D. Laporte United States Magistrate Judge

MELINDA HAAG, CSBN 132612 United States Attorney ALEX G. TSE, CSBN 152348 Assistant United States Attorney Chief, Civil Division MELANIE L. PROCTOR, CSBN 228971 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6730 FAX: (415) 436-7169 E-mail: melanie.proctor@usdoj.gov Attorneys for Plaintiff

CONSENT DECREE OF CONDEMNATION AND PERMANENT INJUNCTION

On August 20, 2012, the United States of America, by and through its attorneys, filed a Verified Complaint for Forfeiture In Rem ("Complaint") against the above-captioned articles.

The articles proceeded against are articles of food within the meaning of the Federal Food, Drug, and Cosmetic Act ("the Act"), 21 U.S.C. § 321(f). The Complaint alleges that the seized articles are adulterated while held for sale after shipment in interstate commerce, within the meaning of 21 U.S.C. § 342(a)(4), in that they have been held under insanitary conditions whereby they may have become contaminated with filth.

In response to the Complaint, on August 21, 2012, this Court issued a Warrant for Arrest In Rem directing the United States Marshal for this district ("U.S. Marshal") to seize the articles. The U.S. Marshal executed the seizure on August 21, 2012. Thereafter, the United States caused notice of the Complaint and seizure to be published in accordance with the applicable rules of this Court and Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure.

On August 23, 2012, San Francisco Herb and Natural Food Company ("Claimant") filed a verified claim to the seized articles ("Condemned Articles"). Claimant filed a First Amended Verified Statement of Interest on August 29, 2012, and an Answer on September 12, 2012. In consenting to the entry of this Consent Decree, Claimant's Chief Executive Officer and President Barry Meltzer and its Chief Operating Officer Fahimeh Niroomand have neither admitted nor denied any allegation in the Complaint, and nothing in this Consent Decree is an admission by either of them or by Claimant (collectively, "Defendants") that they have committed any violation of the Act. Claimant and Defendants acknowledge and agree that they have entered into this civil Consent Decree voluntarily and that it does not address or limit, in any respect, any other actions, including criminal proceedings or civil claims, of the United States or any agency thereof.

Claimant agrees to indemnify and hold the United States harmless should any party or parties hereafter file or seek to file a claim or to intervene in this action and obtain the Condemned Articles. Claimant and Defendants, having appeared and voluntarily consented to the entry of this Decree without contest, before any testimony has been taken, and waiving the filing and service of an amended complaint seeking injunctive relief, and the United States having consented to this Decree:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. This Court has jurisdiction over the subject matter herein and has personal jurisdiction over all parties to this action pursuant to 28 U.S.C. § 1345 and 21 U.S.C. §§ 332 and 334. Venue is proper in this district under 28 U.S.C. §§ 1391(b)-(c) and 1395.

2. The seized articles are articles of food that are adulterated while held for sale after shipment in interstate commerce, within the meaning of 21 U.S.C. § 342(a)(4), in that they have been held under insanitary conditions whereby they may have become contaminated with filth.

3. The seized articles are hereby condemned pursuant to 21 U.S.C. § 334(a) and forfeited to the United States.

4. Pursuant to 21 U.S.C. § 334(e), Claimant shall pay to the United States all court costs and fees, storage, and other proper expenses of this proceeding incurred to date, including, but not limited to, those incurred by the U.S. Marshal, and such additional expenses as may hereinafter be incurred and taxed. Claimant shall pay these costs within ten (10) business days after receiving notice of such costs from the United States Food and Drug Administration ("FDA"), the U.S. Marshal, or the United States Attorney for the Northern District of California.

5. Within twenty (20) calendar days of the entry of this Decree, Claimant shall execute and file with the clerk of this Court a good and sufficient penal bond (the "Bond") with surety in the amount of five hundred eighty five thousand and two hundred dollars ($585,200) to be applied to Lot 1 (as described in Subpart A of Paragraph 9 of this Decree), and held for application to succeeding Lots 2-10 (as described in Subparts B-J of Paragraph 9 of this Decree).

The Bond shall be in a form acceptable to the clerk of this Court and payable to the United States of America, and conditioned on Claimant's abiding by and performing all of the terms and conditions of this Decree and of such further orders and decrees as may be entered in this proceeding.

6. After paying the costs pursuant to paragraph 4 and posting the Bond with the clerk of this Court pursuant to paragraph 5, Claimant shall give written notice to FDA at the address listed in paragraph 30 that Claimant, at its own expense, is prepared to attempt to bring the Condemned Articles into compliance with the law under the supervision of a duly authorized FDA representative.

7. Claimant shall either: (a) submit to FDA evidence that it will no longer use the facility located at 47444 Kato Road, Fremont, CA (the "Kato Road Facility"), for receiving, manufacturing, preparing, processing, packing, holding, or distributing articles of food; or (b) in the event that Claimant elects to use the Kato Road Facility for receiving, manufacturing, preparing, processing, packing, holding, or distributing articles of food, clean and renovate, at its own expense, the Kato Road Facility and render it sanitary and fit for the storage and handling of articles of food, and thereafter, submit a written request to FDA for an inspection of the Kato Road Facility. Following receipt of Claimant's request, FDA will conduct an inspection of the Kato Road Facility to determine whether it is sanitary and fit for the proper storage and handling of articles of food and will promptly inform Claimant, in writing, of the results of that inspection.

8. Claimant shall not commence, permit any other person to commence, or cause any other person to commence attempting to bring the Condemned Articles into compliance with the law unless and until Claimant: (a) receives notice from FDA, in writing, that either it has submitted adequate evidence to FDA that it will no longer use the Kato Road Facility for receiving, manufacturing, preparing, processing, packing, holding, or distributing articles of food, or it appears, based on FDA's inspection, that the Kato Road Facility has been made sanitary and fit for the proper storage and handling of articles of food; (b) submits a written statement to FDA detailing the proposed plan to bring the Condemned Articles into compliance (the "Reconditioning Plan"), which includes, but is not limited to, either rendering the Kato Road Facility sanitary and fit for the proper storage and handling of articles of food or moving the Condemned Articles to another location, approved by FDA, for reconditioning; (c) receives written approval of the Reconditioning Plan from FDA; and (d) receives written authorization from FDA to commence reconditioning. FDA's decisions regarding the adequacy of evidence that Claimant will no longer use the Kato Road Facility for receiving, manufacturing, preparing, processing, packing, holding, or distributing articles of food, the cleanliness of the Kato Road Facility, and the Reconditioning Plan shall be final.

9. The U.S. Marshal, upon receiving notice from the United States Attorney for this 6 District that Claimant is authorized to commence reconditioning, shall release the appropriate 7 Lot of Articles (as described in Subparts A-J, below) to the custody of Claimant in accordance 8 with the terms and conditions set forth as follows:

A. The Condemned Articles in Lot 1, consisting of approximately 1/10 of the 10 Condemned Articles (by value), to be further designated by the FDA representative in 11 consultation with Claimant, shall be released to Claimant for the sole purpose of attempting to 12 bring the Condemned Articles in Lot 1 into compliance with the law pursuant to the approved 13 Reconditioning Plan described in paragraph 8.

B. If and only if Claimant complies with all of the terms of this Consent

Decree with respect to Lot 1 and has paid all costs assessed to date pursuant to paragraph 22, the 16 Condemned Articles in Lot 2, consisting of approximately a second 1/10 of the Condemned 17 Articles (by value), to be further designated by the FDA representative in consultation with 18 Claimant, shall be released to Claimant for the sole purpose of attempting to bring the 19 Condemned Articles in Lot 2 into compliance with the law pursuant to the approved 20 Reconditioning Plan described in paragraph 8.

C. If and only if Claimant complies with all of the terms of this Consent

Decree with respect to Lot 2 and has paid all costs assessed to date pursuant to paragraph 22, the 23 Condemned Articles in Lot 3, consisting of approximately a third 1/10 of the Condemned 24 Articles (by value), to be further designated by the FDA representative in consultation with 25 Claimant, shall be released to Claimant for the sole purpose of attempting to bring the 26 Condemned Articles in Lot 3 ...


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