William J. Brennan, Jr.

“ The Secretary did not determine that Red 32 in the quantities used in color-added oranges was harmful for human consumption, but rather determined on the basis of the 1951-1953 tests only that Red 32 and the other suspect coal-tar colors were toxic and therefore not 'harmless and suitable for use in food.' The Court of Appeals held that the 1939 finding that Red 32 was harmless 'should not be supplanted' by a contrary finding 'unless there is evidence that, in the amounts used, and in the manner of use, oranges colored with Red 32 are unsafe for human consumption.' 246 F.2d at pages 861-862. ”

“ However, the evidence at the Secretary's hearing did indicate that Red 32 had a poisonous effect on animals. Feeding the color to rats in quantities as small as 0.1% of their diet was deleterious and often fatal, with liver damage and enlargement of the heart in evidence. In larger quantities, 1.0% and 2.0% of the diet, ingestion of Red 32 by rats caused death within twelve days and a week, respectively. ”

“ We are not persuaded by the respondents' argument, adopted by the Court of Appeals, that the words 'harmless' and 'poisonous' are relative words, referring not to the effect of a substance in vacuo, but to its effect taken in a particular way and in particular quantities, on an organic system. ”

“ This had the effect of making the certification system, in which analysis concentrated on the color substances themselves, rather than an examination of the effect of the use of the colors in the context of the food products involved, the conclusive test of adulteration. Thus it is that the test of certification laid down in § 406 (b) concentrates on the color substance itself; it is to be listed only if it is harmless. The Secretary is to address himself to the harmless character of the substance first ”

“ The summons and petition may be served at any place in the United States. The Secretary, promptly upon service of the summons and petition, shall certify and file in the court the transcript of the proceedings and the record on which the Secretary based his order.' 52 Stat. ”