It is not an offense under §§ 301(f) and 704 of the Federal
Food, Drug, and Cosmetic Act for the president of a corporation
operating a factory engaged in packing and preparing food for
interstate distribution to refuse to grant permission for
inspectors of the Food and Drug Administration to enter and inspect
the factory at reasonable times. Pp.
344 U. S.
174-177.
194 F.2d 686, affirmed.
Respondent was convicted of a violation of § 301(f) of the
Federal Food, Drug, and Cosmetic Act. 95 F. Supp. 206. The Court of
Appeals reversed. 194 F.2d 686. This Court granted certiorari. 343
U.S. 940.
Affirmed, p.
344 U. S.
177.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondent was convicted of violating § 301(f) of the Federal
Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 331(f).
That section prohibits "The refusal to permit entry or inspection
as authorized by section 704." [
Footnote 1] Section 704 authorizes the federal officers or
employees "after first making request and obtaining permission
Page 344 U. S. 175
of the owner, operator, or custodian" of the plant or factory
"to enter" and "to inspect" the establishment, equipment, materials
and the like "at reasonable times." [
Footnote 2]
Respondent is president of a corporation which processes apples
at Yakima, Washington, for shipment in interstate commerce.
Authorized agents applied to respondent for permission to enter and
inspect his factory at reasonable hours. He refused permission, and
it was that refusal which was the basis of the information filed
against him and under which he was convicted and fined. 95 F. Supp.
206. The Court of Appeals reversed, holding that § 301(f), when
read with § 704, prohibits a refusal to permit entry and inspection
only if such permission has previously been granted. 194 F.2d 686.
The case is here on certiorari.
The Department of Justice urges us to read § 301(f) as
prohibiting a refusal to permit entry or inspection at any
reasonable time. It argues that that construction is needed if the
Act is to have real sanctions, and if the benign purposes of the
Act are to be realized. It points out that factory inspection has
become the primary investigative device for enforcement of this
law, that it is from factory inspections that about 80 percent of
the violations are discovered, that the small force of inspectors
makes factory inspection, rather than random sampling
Page 344 U. S. 176
of finished goods, the only effective method of enforcing the
Act.
All that the Department says may be true. But it does not enable
us to make sense out of the statute. Nowhere does the Act say that
a factory manager must allow entry and inspection at a reasonable
hour. Section 704 makes entry and inspection condition on "making
request and obtaining permission." It is that entry and inspection
which § 301(f) backs with a sanction. It would seem, therefore, on
the face of the statute, that the Act prohibits the refusal to
permit inspection only if permission has been previously granted.
Under that view, the Act makes illegal the revocation of permission
once given, not the failure to give permission. But that view would
breed a host of problems. Would revocation of permission, once
given, carry the criminal penalty no matter how long ago it was
granted and no matter if it had no relation to the inspection
demanded? Or must the permission granted and revoked relate to the
demand for inspection on which the prosecution is based? Those
uncertainties make that construction pregnant with danger for the
regulated business. The alternative construction pressed on us is
equally treacherous, because it gives conflicting commands. It
makes inspection dependent on consent, and makes refusal to allow
inspection a crime. However we read § 301(f), we think it is not
fair warning,
cf. United States v. Weitzel, 246 U.
S. 533;
McBoyle v. United States, 283 U. S.
25, to the factory manager that, if he fails to give
consent, he is a criminal. The vice of vagueness in criminal
statutes is the treachery they conceal, either in determining what
persons are included or what acts are prohibited. Words which are
vague and fluid,
cf. United States v. L. Cohen Grocery
Co., 255 U. S. 81, may
be as much of a trap for the innocent as the ancient laws of
Caligula. We cannot sanction taking a
Page 344 U. S. 177
man by the heels for refusing to grant the permission which this
Act, on its face, apparently gave him the right to withhold. That
would be making an act criminal without fair and effective notice.
Cf. Herndon v. Lowry, 301 U. S. 242.
Affirmed.
MR. JUSTICE JACKSON concurs in the result.
MR. JUSTICE BURTON dissents.
[
Footnote 1]
The violation is made a misdemeanor by 21 U.S.C. § 333.
[
Footnote 2]
Section 704 reads as follows:
"For purposes of enforcement of this act, officers or employees
duly designated by the Administrator, after first making request
and obtaining permission of the owner, operator, or custodian
thereof, are authorized (1) to enter at reasonable times, any
factory, warehouse, or establishment in which food, drugs, devices,
or cosmetics are manufactured, processed, packed, or held, for
introduction into interstate commerce or are held after such
introduction, or to enter any vehicle being used to transport or
hold such food, drugs, devices, or cosmetics in interstate
commerce, and (2) to inspect at reasonable times, such factory,
warehouse, establishment, or vehicle and all pertinent equipment,
finished and unfinished materials, containers, and labeling
therein."