A. Whenever the director finds or has probable cause to believe that any food is adulterated or so misbranded as to be dangerous or fraudulent within the meaning of the New Mexico Food Act, he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by the director or the court. It shall be unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission.

B. When an article detained or embargoed under Subsection A of this section has been found by the director to be adulterated or misbranded, he shall petition the judge of the district court in whose jurisdiction the article is detained or embargoed for a libel for condemnation of such article. When the director has found that an article so detained or embargoed is not adulterated or misbranded, he shall remove the tag or other marking.

C. If the court finds that a detained or embargoed article is adulterated or misbranded, such article shall, after entry of the decree, be destroyed at the expense of the claimant thereof under the supervision of the director, and all court costs and fees and storage and other proper expenses shall be taxed against the claimant of such article or his agent; provided that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decree and after such costs, fees and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of the director. The expense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article on representation to the court by the director that the article is no longer in violation of the New Mexico Food Act and that the expenses of such supervision have been paid.

D. Whenever the director shall find in any room, building, vehicle of transportation or other structure, any meat, seafood, poultry, vegetable, fruit or other perishable articles which are unsound or contain any filthy, decomposed or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, he shall forthwith condemn or destroy the same or in any other manner render the same unsaleable as human food.

History: 1941 Comp., § 71-669, enacted by Laws 1951, ch. 169, § 6; 1953 Comp., § 54-1-6; Laws 1982, ch. 73, § 4.

Action contemplated by Subsection C is in rem. It is against the thing wherever found in whatever ownership. State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, 83 N.M. 755, 497 P.2d 966.

Action is predicated upon police power, not eminent domain. — The right to seize and destroy unfit or impure foods is a reasonable exercise of the right and duty of the state to protect the public health and is predicated upon the police power, and does not fall within N.M. Const., art. II, § 20, which deals with takings "for public use" - which is to say - by eminent domain. State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, 83 N.M. 755, 497 P.2d 966.

State is not required to make compensation when it seizes and destroys food found to be contaminated within the provisions of the New Mexico Food Act. State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, 83 N.M. 755, 497 P.2d 966.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 Am. Jur. 2d Food §§ 63 to 73.

36A C.J.S. Food §§ 50 to 56.