Fruit juice can seizings upheld

Press, 29 January 1982, Page 5

Fruit juice can seizings upheld

The Department of Health’s Seizing last August of 2132 boxes and 396 cans of Fresh Up Old Fashioned Fruit Apple Juice on suspicion of its having a higher lead content than permitted, was upheld in the District Court yesterday. In an oral reserved decision given yesterday, Judge Frampton refused an application by -- Beau David McCracken, a truck driver, that the Health Department’s seizing of the apple juice be disallowed. He said that,,to make an order, as sought, for the return of the apple juice, would place in Mr McCracken’s hands a large quantity of apple juice of which an appreciable amount contained a greater lead level than permitted by the Food and Drug Regulations. The application was heard in the District Court on Monday, after which the Judge reserved his decision until yesterday.

Mr McCracken, who was represented by Mr C. B. Atkinson, sought an order that the seizing be disallowed and the apple .juice returned to him, on the ground that the apple juice was fit for human consumption, that all the provisions of the Act and regulations had been complied with. Mr B. M. Stanaway appeared for the Department of Health.

Evidence in the case had been that the apple juice was seized last August by an inspector of the department, Mr K. M. Pettengell, from Mr McCracken’s home. An excess lead content was measured during a routine test of apple and boysenberry juice and ciders made by Lochbuie Wines at Belfast, from a base of Old Fashioned apple juice. The juice had been canned

during 1979 and bought by Lochbuie Wines in 1981. The balance of the consignment was then sold to Mr McCracken later last year. The Health Department traced the apple juice cans to several retail outlets supplied by Mr McCracken, and samples showed excess lead in some cans.

After tests by the D.S.I.R. on some cans still kept in Mr McCracken's garage, the department seized all the cartons under the Food and Drugs Act. The seizing was disputed by Mr McCracken, and Mr Atkinson said in submissions against the seizing that he disputed the. department’s classification of the apple juice as a beverage — a category which had a stricter level of lead content for any classification. He submitted that the juice should be more properly classified as a fruit or fruit product, which allowed a much higher lead level, and which, he said, none of the samples would have exceeded.

In his reserved judgment the Judge said samples obtained from the applicant’s stocks, and from purchases supplied by the applicant, shared lead levels of between 0.05 to 1.35 parts per million by weight. It could be concluded therefore that an appreciable part of the apple juice contained more than the 0.2 parts per million by weight, allowed under the category of beverages. The Judge traversed the references in the Act to extraneous substances, when referring to the lead which might seep into the contents of a can from solding of the joints. He concluded that the regulations, which consolidated laws relating to the

sale of food, and the permitted standards, must also apply in forbidding the sale of foods which did not conform to the standards set out

The Judge quoted dictionary references to beverage, one of which classed it as any drink other than water. He said he could not find, as submitted by Mr Atkinson, that the apple juice fell into the category of a fruit or fruit product, rather than a beverage. To disregard the product's present state and classify it by its original material would be an “artificial distinction.”

The Judge also held that the department’s inspector had the power to seize the apple juice at the time he did.

In the light of his knowledge on August 24 he had reasonable cause to suspect that the fruit juice contained a higher proportion of lead than permitted, and that was later confirmed by the D.S.I.R. analyses. To make an order for its return would place in Mr McCracken’s hands a large quantity of apple juice, an appreciable amount of which contained a greater level of lead than permitted under the regulations, the Judge said.

Costs were not sought by the department and no order was made against the applicant.