(dissenting).
Fantis, the owner of this tomato paste, imported it under a contract which provided that he need not pay for it unless it was released from bond on its approval by the Food and Drug Administrator. On April 9, 1951, the Administrator (through a subordinate) having inspected it, gave Fantis the necessary approval. As a consequence, Fantis paid some $9,-000 to the seller. Some three months later, the Administrator re-inspected the shipment, declared it in violation of the Act, seized it and, by this proceeding, sought a court order confiscating it. The Administrator having won in this court under my colleagues’ decision, Fantis will lose his property without any compensation — i.e., he will be out the $9,000.
1. The pertinent section of the Federal Food, Drug, and Cosmetic Act of 1938, is 21 U.S.C.A. § 342(a) (3), which authorizes condemnation (confiscation) of food as adulterated, “if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food”. The words “filthy or putrid” have no relevance here, for the government does not charge that this tomato paste was either filthy or putrid. The government proved only that it contained some “decomposed substance”— namely mold. It did not prove, or even try to prove, that this food was either deleterious to health or “unfit for food”. Indeed, the government and my colleagues assert that such proof was not necessary. For an understanding of my position, it is desirable to highlight these facts:
(a) The phrase “decomposed matter,” as applied here, means simply and solely “mold.”
(b) The government admits that no one looking at this tomato paste, or tasting or smelling it, would have any knowledge that it contained any mold. The government’s experts testified, and the government’s brief states, that the presence of such mold in tomato paste can be detected only through a microscope and by an expert.
(c) The evidence here discloses that virtually all tomato paste contains some mold.
(d) So the use of the word “rotten” (or of any other pejorative) indicates nothing in any way unpleasant or harmful but merely that the tomato paste contains some utterly harmless mold.
(e) As several kinds of cheese which thousands of our citizens consider delectable — e.g., Roquefort or Gorgonzola— contain very substantial quantities of *576mold, my colleagues' interpretation means that Congress authorized the Pure Food and Drug Administrator to condemn such cheese any time the Administrator happens to decide that it should not be sold.
(f) No one (including the government, except my colleagues in their opinion here) has ever so much as intimated that the presence of mold in a can indicates a possible future deterioration of the contents of the can which may later render the contents injurious to health. Indeed, in this very case a government expert witness testified that, in a properly made can, the amount of mold present in the can when it is sealed, will never increase; and there is no proof that the cans here were not properly made and sealed.1
(g) This suit is based upon alleged adulteration, under § 342(a) (3), not upon “economic adulteration,”2 or misbranding, i.e., not upon any misrepresentation of the contents of the can. The Administrator, to protect consumers, has the power, under § 341,3 to issue regulations fixing reasonable standards of identity, quality and fill of containers, and has issued such regulations as to many foods.4 He might have issued such a regulation relating to canned tomato paste, with specific reference to the percentage of mold. In that event, if the cans here had failed to meet that standard, there would have been misbranding under § 343(g) or (h),5 and confiscation would have been justified. But no such regulation exists. (In its absence, it is *577difficult to understand just what my colleagues mean when they say that housewives buying canned tomato paste — as distinguished from consumers of tomato paste, like that here, destined for sale to restaurants or institutions — “do have some possible chance of protecting themselves against unwholesome products by buying first-grade articles at top prices.” For, as above noted, no consumer is able to tell whether, or how much, mold is in a can of such paste.)
2. My colleagues construe “decomposed” as an absolute, i.e., unqualified by the subsequent words “or otherwise unfit for food.” In an Appendix to this opinion, I have stated my reasons for construing “decomposed” as meaning so decomposed as to be “unfit for food” but not so decomposed as to be deleterious to health. The record discloses not even a soupcon of evidence that this tomato paste, when seized, was unfit for food. Consequently, under my interpretation of § 342(a) (3), the district court’s order should be affirmed.
3. However, under either interpretation, the Administrator has an amazingly wide and unregulated discretion (since, as my colleagues say, even “unfit for food” has a most latitudinarian meaning). So, according to my colleagues’ view, if the Administrator, without any previous publication of a standard, chose to seize tomato paste containing but 5% of mold, the courts would have to enforce the seizure and confiscate the paste. This means the absence of any impediment to unequal treatment in the administration of the statute.
My colleagues, to be sure, point to 21 U.S.C.A. § 336 which reads, “Nothing in this chapter shall be construed as requiring the Secretary to report for prosecution, or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice or warning.” But (aside from the fact that this section covers “minor violations” only) my colleagues themselves recognize that it does not cut down the Administrator’s immense power, even as to most “minor violations,” but leaves it entirely in the Administrator’s uncontrolled discretion to institute a proceeding to condemn any food containing mold: My colleagues explicitly rule that, once the Administrator has exercised his uncontrolled discretion and begun such a proceeding, the court must order the food condemned, no matter how small the amount or percentage of mold (unless perhaps it is so small as to come within the “de minimis” principle). It follows that § 336 does not in any way diminish the vast delegation of discretionary authority to the Administrator or preclude inequality in the exercise of that authority.
4. I am not now prepared to say that such statutory delegation, although (as my colleagues say) coupled with no recognizable standard whatever, is unconstitutional. But our responsibility goes beyond adjudication of the validity of the legislative grant. It includes the duty of scrutinizing the methods employed in the processes of administering the granted power. Unless this power is in some way constrained (as I believe it has been by the Administrative Procedure Act), it permits dangerous administrative arbitrariness: The Administrator may one day confiscate Smither’s food product because it contains 10% of mold; the next day confiscate Williams’ because it contains 15% ; and the day after, Robinson’s because it contains 40%.
The fact that the Administrator had in no such case previously announced a standard binding upon him would not (except as I shall note in a moment) invalidate his action. I stress this fact because, in answer to Fantis’ complaint that he relied on the Administrator’s initial approval, the government says that he had no business thus to rely but, before expending his $9,000, should have obtained the advice of an expert he might have hired. But, absent knowledge of some fixed standard, no expert could have given such advice.
*578No doubt to avoid this sort of situation, Congress, in the Administrative Procedure Act, required administrative, officials to publish their standards. Section 3(a) (3) of that Act, 5 U.S.C.A. § 1002(a) (3), provides that “Every agency shall separately state and currently publish in the Federal Register * * * (3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public * * The Administrator’s determination that food containing a certain percentage of mold is “decomposed” and therefore subject to condemnation under the Act, is both an in- ■ terpretation of the Act and a statement of policy as to standards. As such, that determination should be published in the Federal Register in accordance with the provisions of § 3(a) (3). The necessity of apprising the public of administrative standards and interpretations was apparent to the drafters of the Administrative Procedure Act for, in a report dealing with § 3(a) (3), the House Committee stated:6 “The section forbids secrecy of rules binding upon or applicable to the public or of delegations of authority. Mimeographed releases of many kinds • now common should no longer be necessary since, if they contain really informative matter, they must be published as rules, policies, or interpretations. Substantive rules include the Statement of Standards.” H.Rep. 1980 on S. 7 — 79th Cong. 2nd Sess. May 3, 1946.
The Administrator did not comply with this provision. Indeed, one of the government experts testified in this case that the Administrator, since the seizure here, has changed his standard;7 but no standard whatever, relative to mold in tomato paste, has ever been published in the Federal Register.8
It may be noted that, in the trial court, Fantis’ counsel stated that “it has been recognized by President Truman that various departments in our Government, in order to overcome the necessity of increasing tariff laws, or increasing tariff rates and duty rates, have found other ways of discouraging importers from importing merchandise, and it is acknowledged, and a committee was appointed by President Truman, and there have been articles on this in the New York Times, and it is a well known by-word in the trade that various departments of the Government find methods other than duty to restrict importers from importing certain types of merchandise.” Fantis offered no proof to support such a conclusion. But, with utterly uncontrolled discretion, restricted by no announced and binding standards, such administrative behavior may occur. Compliance with the Administrative Procedure Act will help to prevent it. Publication of binding standards has another virtue: If a citizen thinks the published standard unreasonably low, he can complain, through his congressional representatives, and Congress may reduce the statutory discretion.
*579Unhampered discretion of the type conferred by 21 U.S.C.A. § 342(a) (3) is at best, insidious. Possessed of such power, an official may stop the sale of perfectly good food merely because he happens not to like it. (One recalls the tale of the totalitarian agitator who, having promised in a speech that, after the revolution, everybody would eat strawberries, replied to a heckler who loathed that fruit: “Comes the revolution, you’ll eat strawberries.”) More than a century ago, in 1840, Tocqueville warned that, even in a political democracy there might arise “an immense and tutelary power” which would be “absolute, minute, regular and mild,” aiming to keep the citizens “in perpetual childhood.” Such a government would seek “to spare them all the care of thinking and all the trouble of living. * * * It must not be forgotten that it is especially dangerous to enslave men in the minor details of life. * * * Subjection in minor affairs * * * does not drive men to resistance, but it crosses them at every turn, till they are ready to surrender the exercise of their own will. Thus their spirit is gradually broken and their character enervated. * * * ”9
Such a possibility should cause courts like ours, when they can, to insist that administrative officers exercise wide discretionary powers in accordance with any statutory provision which requires that they commit themselves to properly publicized standards. In that way, to some extent at least, can there be reconciled unavoidable delegation of extensive discretion to administrators with needed protection of the individual.
Even assuming, then, the correctness of my colleagues’ interpretation of the 1938 statute, I think we should affirm the order of the district court because of the lack of compliance with the Administrative Procedure Act.
Appendix To Judge FRANK’S Dissenting Opinion
1. I think the following history of 21 U.S.C.A. § 342(a) (3) teaches that it permits confiscation of food containing mold (i.e., “decomposed” matter) only if the presence of the mold makes the confiscated article “unfit for food”:
(a) Section 7 of the original Pure Food and Drug Act of 1906 (i.e., former 21 U.S.C. § 8) provided that food should be deemed adulterated and subject to condemnation if, among other things, “it consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter.”
(b) My colleagues cite one Court of Appeals decision and five District Court cases which interpreted that provision of the 1906 Act. The Ninth Circuit held that the provision did not require proof that the food be injurious to health but did require proof that “ ‘the product is so far decomposed as to be unfit for food’ ” (or “unfit for human consumption”). See A. O. Andersen & Co. v. United States, 9 Cir., 1922, 284 F. 542, 544, 545. In so holding, the court cited and quoted from United States v. Two Hundred Cases of Catsup, D.C.Or.1914, 211 F. 780, and United States v. 133 Cases of Tomato Paste, D.C.E.D.Pa. 1938, 22 F.Supp. 515. Of the other three district court cases cited by my colleagues,10 only one said that neither harm to health nor “unfit for food” need be shown.11
(c) So the judicial interpretation stood when the 1938 statute, the Federal Food, Drug, and Cosmetic Act, was enacted. I think my preceding paragraph *580shows that my colleagues mistakenly argue that the pre-1938 judicial decisions disclosed a “uniform construction” (sustaining my colleagues’ view of former Section 7) of which Congress must have been aware when it legislated in 1938. The new Act amended the 1906 Act and added many wholly new provisions. In particular, it substituted for the portion of former Sec. 7, 21 U.S.C. § 8, new Sec. 342(a) (3) which provides that food is adulterated “if it consists in whole or in part of any * * * decomposed substance, or if it is otherwise unfit for food”. The italicized word “otherwise” is new. I find it difficult to interpret it except as meaning that the existence of any “decomposed substance” does not render food “adulterated” unless the effect is to render the food “unfit for human food.”
(d) So read, the 1938 amendment serves to make clear that the Ninth Circuit’s interpretation of old Section 7 was correct. This explains what the Senate Report, quoted by my colleagues, meant in stating the provision of Subsection (a) (3) — of what became Sec. 342 — was “essentially the same” as that in the 1906 Act.
(e) My colleagues mention the subsequent Committee Report which declared that “ * * * the measure * * * amplifies and strengthens the provisions to safeguard the public health.” The “measure,” of course, was the entire new Act. Without doubt, that Act did amplify and strengthen the former health-safeguarding provisions. (In the footnote, I point to a few samples of that character.12) So that the Report cannot reasonably be interpreted to justify a conclusion that Section 342(a) (3) departed from the Ninth Circuit’s interpretation of Section 7 of the former Act.
2. My colleagues seem to suggest that §§ 71 to 91 of 21 U.S.C.A. — sections dealing with meat inspection — are inconsistent with my interpretation. As I understand my colleagues, they rely on those meat-inspection sections to show that, in talking of “decomposed substance” in former § 7 or in (new) § 342(a) (3), Congress could not have intended that the presence of such substance in food would authorize condemnation only if the result would render the food “unfit for food”. Their discussion of this point is not entirely clear. They seem to imply that Section 342(a) (3) must be broadly construed so as not to conflict with the Meat Inspection Act.
But note this: The meat inspection provisions — Sections 71 to 91 — constituted the Meat Inspection Act of 190713 which was enacted separate and apart from the Food and Drugs Act of 1906,14 so that meat which passed inspection under the Meat Inspection Act obviously could not be condemned under any section of the Pure Food and Drugs Act. This fact was made inescapably clear in the new Act — the Federal Food, Drug, and Cosmetics Act, enacted in 1938— the last section of which reads: “Meats and meat food products shall be exempt from the provisions of this Act to the extent of the application or the extension thereto of the Meat Inspection Act of March 4, 1907, as amended (U.S.C., 1934 ed., title 21, secs. 71-91; 34 Stat. 1260 et seq.).”15 In line with the foregoing, *581enforcement of the Meat Inspection Act was left in the Department of Agriculture, while enforcement of the Food and Drugs Act was transferred first to the Federal Security Agency and more recently to the Department of Health, Education & Welfare.
3. My colleagues suggest that Congress, in Sec. 342(a) (3), intended to give the Administrator power to confiscate food containing mold, although in nowise unwholesome or “unfit for food”, because Congress regarded mold in food as “a sign of danger” — presumably a sign that the food would probably soon become thus “unfit.” To this suggestion I have these answers: There is not a word in the legislative history to support the notion that mold in food red-flags “danger to come,” not a syllable of evidence of that sort in the record of this case, not the faintest hint of it in the government’s brief; nor has any previous case in the books intimated that mold in food signalizes “danger to come.” Moreover, as already noted, one of the government’s expert witnesses testified in this case that, in the ordinary, properly made and sealed can, the amount of mold existent when the can was sealed would never increase. What is more, my colleagues maintain that the Administrator, in his unhampered discretion, may successfully cause the condemnation of food containing a very small amount or percentage of mold — so small that it is inconceivable it would signify future “danger.”
4. My colleagues refer to the fact that the recently enacted Section 342(e), relative to oleomargarine, is worded like Section 342(a) (3), in that, after speaking of “decomposed substance,” it goes on to speak of “or otherwise unfit for food.” How this enactment supports my colleagues’ construction of Section 342(a) (3) I do not comprehend.16
. See further discussion in point 3 of the Appendix to this opinion.
. See Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 230, 63 S.Ct. 589, 87 L.Ed. 724; United States v. Two Bags, etc., 6 Cir., 147 F.2d 123; cf. United States v. Antonio Corrao Corporation, 2 Cir., 185 F.2d 372.
. Section 341 reads:
“Definitions and standards for food. Whenever in the judgment of the Secretary such action wiE promote honesty and fair dealing in the interest of consumers, he shaU promulgate regulations fixing and estabEshing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, and/or reasonable standards of fill of container: Provided, That no definition and standard of identity and no standard of quality shaE be established for fresh or dried fruits, fresh or dried vegetables, or butter, except that definitions and standards of identity may be established for avocadoes, cantaloupes, citrus fruits, and melons. In prescribing any standard of fiE of container, the Secretary shall give due consideration to the natural shrinkage in storage and in transit of fresh natural food and to need for the necessary packing and protective material. In the prescribing of any standard of quaHty for any canned fruit or canned vegetable, consideration shaE be given and due aEowance made for the differing characteristics of the several varieties of such fruit or vegetable. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Secretary shaE, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shaE be named on the label. Any definition and standard of identity prescribed by the Secretary for avocadoes, cantaloupes, citrus fruits, or melons shaE relate only to maturity and to the effects of freezing.”
. See 67 Harv.L.Rev. (1954) at 660-661.
. They read as foEows:
§ 343. Misbranded food. * * *
“(g) If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by section 341, unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food.
“(h) If it purports to be or is represented as (1) a food for which a standard of quaEty has been prescribed by regulations as provided by section 341, and its quaHty falls below such standard, unless its label bears, in such manner and form as such regulations specify, a statement that it faEs below such standard; or (2) a food for which a standard or standards of fiE of container have been prescribed by regulations as provided by section 341, and it faEs below the standard of fiE of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it faEs below such standard.”
. In the well-known Attorney General’s report published before passage of the Act, the foEowing statement concerning publication of rules was made: “Most agencies develop approaches to particular types of problems which, as they become estabEshed, are generaEy determinative of decisions. Even when their reflection in the actual determinations of an agency has lifted them to the stature of ‘principles of decision,’ they are rarely pub-Eshed as rules or regulations, though sometimes they are noted in annual reports or speeches or press releases, as weE as in the opinions disposing of particular controversies. As soon as the ‘poEcies’ of an agency become sufficiently articulated to serve as real guides to agency officials in their treatment of concrete problems, that fact may advantageously be brought to pubHc attention in a precise and regularized form.” Report of the Attorney General’s Committee on Administrative Procedure, 77th Cong., 1st Sess. (1941) Sen. Doc. No. 8.
. See my colleagues’ opinion, footnote 5.
. Of course, the Administrator can validly change the standard — prospectively.
. Tocqueville, Democracy in America, Vol. II (1840) Fourth Book, Chapter VI.
. Knapp v. Callaway, D.C.S.D.N.Y.1931, 52 F.2d 476, United States v. Krumm, D.C.E.D.Pa.1921, 269 F. 848, United States v. Two Hundred Cases, More or Less, of Canned Salmon, D.C.S.D.Tex.1923, 289 F. 157.
. United States v. Two Hundred Cases, More or Less, of Canned Salmon, D.C.S.D.Tex.1923, 289 F. 157.
. Section 333 increases tlie maximum penalties (a $100 fine and a one-year term of imprisonment) to $10,000 and three years’ imprisonment. Section 332(b) provides for enforcement by injunction. Section 342(a) (4) and (6) adds new-forbidden kinds of adulteration. See also Sec. 344 as to permits and inspections; many provisions of subchapter V relating to drugs, and subchapter VT covering adulterated cosmetics; and note Sections 372 and 374 as to examinations, investigations, and inspection, 373 as to records of interstate shipments, and Section 375 as to publication of reports.
. It was first enacted as part of an Act making appropriations for the Department of Agriculture in 190'S, 34 Stat. 674, part of Chapter 3913, and later enacted as the Meat Inspection Act of 1907, 34 Stat. 1269, part of 'Chapter 2907.
. See 34 Stat. 763, Chapter 3915.
. See 52 Stat. 1059, being Sec. 902(b). It is now in the Code as 21 U.S.C.A. § 392.
. Nor do I understand their argument based on See. 351(a) which deals with adulterated drugs. For there Congress significantly did not use the phrase or “otherwise unfit for food”. As Sec. 351 (a) is not here before us, I shall not here undertake to interpret it.