11723. Alleged Misbranding of candy.    U. S. v. 193 Cartons    *    *    *.    Tried to
the court.    Judgment dismissing libel.    (F. D. C. No. 18373.    Sample No. 
12081-H.)
LIBEL FILED :   November 14,1945, District of Rhode Island.
ALLEGED SHIPMENT:   On or about October 8, 1945, by the Liberty Chocolate Co.,
from Boston, Mass. 
PRODUCT:    193 cartons of candy at Providence, R. I.
was so filled as to be misleading, since the boxes could hold approximately 50 
percent more candy.
DISPOSITION :   On January 8, 1946, the case was tried to the court, and the f ol- 
'   lowing decision was handed down:
HARTIGAN, District Judge: "This libel was filed by the United States of 
America and prays seizure and condemnation of a certain articles of food in 
accordance with the Federal Food, Drug and Cosmetic Act (21 U. S. C. 301 
et seq.)
"It charges the Liberty Chocolate Company shipped in interstate commerce 
from Boston, Massachusetts, to Providence, Rhode Island, through the Keogh 
Storage Company, Inc., on or about October 8, 1945, an article of food con- 
sisting of 193 cartons, more or less, each containing 18 boxes of a food labeled 
in part: Benevento Brand Nougat Net Weight 9 Ounces. Contains 18 Pieces 
Weighing % Ounce Each, Consisting of Sugar, Honey, Almonds, Egg Whites, 
Cinnamon, Wafer   *    *    *.'
"The aforesaid article was misbranded in interstate commerce, within the 
meaning of said Act, 21 U. S. C. 343 (d), in that its container is so filled as to 
be misleading since the boxes could hold approximately 50 percent more candy.
"There is no testimony to that effeet offered by the Government, that they 
could hold approximately 50 percent more candy.
"That the aforesaid article is in the possession of Giso Brothers Cigar Com- 
pany, at 300 Broadway, Providence, Rhode Island, or elsewhere within the 
jurisdiction of this Court.
"That by reason of the foregoing, the aforesaid article is held illegally within 
the jurisdiction, of this Court and is liable to seizure and condemnation pursuant 
to the provisions of said Act, 21 U. S. C. 334.
"Wherefore the libellant prays that process in due form of law according to 
the course of this Court in cases of admiralty jurisdiction issue against the 
aforesaid article; that all persons having any interest therein be cited to appear 
herein and answer the aforesaid premises; that this Court decree the con- 
demnation of the aforesaid article and grant libellant the costs of this pro- 
ceeding against the claimant of the aforesaid article; that the aforesaid article 
be disposed of as this Court may direct pursuant to the provisions of said Act; 
and that libellant have such other and further relief as the case may require.
"Arcangelo Cataldo, of Boston, has filed a claim of ownership and says he 
is the true and lawful owner of said 193 cartons, more or less, of the article 
labeled in part: Benevento Brand Nougat Net Weight Nine Ounces,' and 
that no other person is interested therein. He prays that the said cartons may 
be returned to him upon giving such stipulations as the Court may direct.
"Said Cataldo has filed an answer which, in effect, states that the claimant 
now is and at all of the times herein mentioned, was the owner of said 193 
cartons, more or less, and that he duly filed customary claim of ownership and 
prayer for stipulation as may be directed by the Court.
"He admits he was the owner of the Liberty Chocolate Company that shipped 
in interstate commerce from Boston, Massachusetts, to Providence, Rhode 
Island, via Keogh Storage Company, Inc., on or about October 8,1945, an article 
of food consisting of 193 cartons, more or less, each containing 18 boxes of a 
food labeled in part: Benevento Brand Nougat Net Weight Nine Ounces,' con- 
taining 18 pieces weighing one-half ounce each, consisting of sugar, honey, 
almonds, egg whites, cinnamon, wafer.
"He denies that the aforesaid articles were misbranded in interstate com- 
merce within the meaning of the Act, 21U. S. C. 343 (d).
"He admits the aforesaid articles were in the possession of the Giso Brothers 
Cigar Company of Providence, as stated in the libel.
"He denies that the aforesaid article is illegally within the jurisdiction of 
this Court and is liable to seizure and condemnation pursuant to the provisions 
of 21 U. S. C, see. 334.
"He further answers stating for a long period of time he has been individually 
engaged in the business of manufacturing candy under the name of Liberty 
Chocolate Company, located at 114 Commercial Street, Boston, Massachusetts; 
that he has manufactured and packaged, under his individual name, the article 
complained of in the libel for several years; that the large carton measures
approximately 6 inches wide, 8 inches long, and 1% inches in depth; that within 
this package there is contained small boxes, 18 in number, bearing the identical 
description and representation as appears on the outer package, which small 
box measures 1% inches wide, 2 inches in length, and approximately 1 inch in 
depth; that within said box there is packaged and it contains a piece of candy 
commonly known as Torrance and each piece of candy within each small box 
weighs one-half ounce and is wrapped with a piece of wafer; each piece of candy 
within said box measures approximately 1 inch in width, and 1% inches in 
length, and approximately % inch in depth; that these boxes and cartons are 
similar in size and description and contents commonly manufactured by other 
manufacturers in the trade.
"And he has introduced in evidence Exhibits A and B, to which the Govern- 
ment has not objected, which are somewhat similar in size and packaging and 
number of smaller packages in the larger packages as are in the Government's 
Exhibit 1.
"And that at no time did the claimant know or have any intimation from any 
source that these cartons and boxes were misbranded, because the container 
was so made, formed or filled as to be misleading.
"The claimant prays the libel be dismissed with costs.
"Title 21, sec. 343, provides as follows: 'A food shall be deemed to be mis- 
branded, (d), if its container is so made, formed or filled as to be misleading.'
"The Government has offered in evidence the testimony of Abraham E. 
Ledderer of the Food and Drug Division to the effect that he turned over the 
samples—I believe he said six of the cartons shipped, as is admitted—to their 
Division in Boston.
"Meyer Matluck, the chemist for the Food and Drug Division, testified to 
receiving the samples from the chief chemist. And there is no dispute, I think, 
between the parties that the six samples received by Mr. Matlock were those 
sampled by Mr. Ledderer. And that he made examination and out of three 
packages he took five smaller packages; that he made an examination of the 
candy, the wrappers; and that the cubic volume of the candy averaged about 1.72 
inches by 1.05 by .58. The interior of the package measured 1.95 inches by 1.25 
by .95 inches. The interior volume of the smaller carton was 2.32 cubic inches. 
The average volume per piece of candy is 1.05 cubic inches; that the candy 
occupies 45.3 percent of the entire volume of the carton. There is no testimony 
whether that 45.3 percent refers to the larger carton or to the smaller cartons. 
The Government left it in that way. Therefore, the Court does not know 
whether it refers to the larger carton or the so-called smaller cartons.
"The Government has offered no testimony that anybody has been misled by 
this package. There is no testimony that anything has been palmed off on 
anyone. The Government apparently solely relies on the provisions of sec. 
343 (d).
"Exhibit 1 contains markings in English and, I presume, in Italian although 
there is nothing in the record to help the Court on it, whether it is Italian 
or anything else. But the Court will assume it is Italian. The English part 
on Exhibit 1 reads: BENEVENTO Brand.' Below that is the picture of an 
arch. Then lower down it reads: 'NOUGAT,' in large size lettering; and just 
below that, 'Net Weight 9 Ounces'; the size of the lettering of the weight, the 
Court would estimate, although there is no testimony in regard to it, being 
approximately—a little more, I would say, than one-eighth of an inch. Below 
that in little smaller lettering: 'Contains 18 Pieces Weighing y2 Ounce Each, 
Consisting of Sugar, Honey, Almonds, Egg Whites, Cinnamon, Wafer.' And 
below that: 'Manufactured in U. S. A. by Arcangelo Cataldo, 114 Commercial 
St., Boston, Mass.'
"I shall not assume to read the reverse side which, apparently, is in Italian, 
but having read the English side and from my limited knowledge of Italian, 
would take it to be the same as the English. The heading says, BENEVENTO,' 
for example, and TORRONE,' which, I understand from the parties, is the 
Italian of 'Nougat.'
"There is no testimony presented to the Court that this type of package, 
Exhibit 1, has been palmed off on anybody, nor is there any evidence to assist 
the Court that it is misleading. The testimony introduced by Mr. Matlock, 
when he took out the candy from the smaller packages showing the way they 
were wrapped and so on, did not impress the Court that such wrapping and
782319—48 2
size was misleading. The Court would feel it to be stretching that statute 
all out of proportion to its purpose if it were to find on the evidence in this 
case, dealing with this particular nougat, the way it is shaped and wrapped, 
that that container was 'so made, formed or filled as to be misleading.'
"The physical appearance of that does not convince the Court that the 
Government has established its contention. I made this ruling without taking 
into consideration the defendant's Exhibits A and B whieh have been offered 
in evidence for the purpose of showing substantially that other manufacturers 
of a like article so package their product. That was the sole purpose, I take 
it, of those exhibits. The Government has not objected to those Exhibits 
A and B, but the Court makes its findings without taking those two exhibits 
into consideration because, in the Court's opinion, they are immaterial for the 
purpose of this case. The only question before this Court relates to the 
product that was seized, not some other product.
"The smaller packages contained in the larger package of Government's 
Exhibit 1, except for the size, bear substantially the same markings as the 
larger package with the exception that in the upper left-hand corner in the 
English description on the smaller packages there appears in plain English the 
following words: 'Net Weight % Ounce'; the said marking of 'Net Weight % 
Ounce' being, in the opinion of the Court, a more Conspicuous marking of 
the weight than even the net weight marking on the outer side of Exhibit 1.
"There is nothing, in the opinion of the Court, in the shape and size of 
the larger package or the smaller packages that would be misleading to a 
person, and there has been no testimony on behalf of the Government that 
such markings would be misleading or would likely be misleading to an 
average purchaser. Under all of the facts in this case, as I have indicated, and 
in the absence of the Government in showing the Court any authority other 
than its plain statement that in its opinion such marking is misleading, the 
Court cannot, as a matter of law, say that the defendant has misbranded 
the product, nor can it say, as a matter of law, that the containers are so 
made, formed or filled as to be misleading.
"The Court, therefore, dismisses the libel and orders the return of the seized 
property to the claimant."
On January 30, 1946, a decree was entered ordering the libel dismissed and 
the product returned to the claimant. On appeal to the Circuit Court of Appeals 
for the First Circuit, the decision of the District Court was affirmed, the court 
handing down the following opinion:
MAHONET, Circuit Judge: "This is an appeal from the dismissal of a libel 
brought under the Federal Food, Drug and Cosmetic Act of 1938 (52 Stat. 1040 
(1938), 21 U. S. C. 301 et seq. (1940)), for the condemnation of certain articles 
of food consisting of 193 cartons, more or less, each containing eighteen boxes of 
a food labeled in part: 'Benevento Brand Nougat Net Weight 9 Ounces Contains 
18 Pieces Weighing % Ounce Each, Consisting of Sugar, Honey, Almonds, Egg 
Whites, Cinnamon, Wafer * * *', which were shipped in interstate com- 
merce from Boston to Providence. The libel charged misbranding within the 
meaning of § 403 (d)1 of the Act in that its container is so filled as to be 
misleading since the boxes could hold approximately 50 per cent more candy.
"In his answer the claimant sought the return of the articles alleging that 
he was the owner of the Liberty Chocolate Company which shipped the articles 
from Boston to Providence in interstate commerce and denied that they were 
misbranded and liable to seizure and condemnation. He averred that he had 
manufactured and packaged the articles under his individual name for a long 
time and that the large carton measures approximately 6" x 8" and is V/8" 
deep and each carton contains eighteen small boxes; each small box measures 
1%" in width, 2" in length and about 1" in depth, and bears the same 
description and representation as the outer package; that each of these small 
boxes contains one piece of candy, one-half ounce in weight, known as corrode.' 
Each piece is wrapped with a piece of wafer and measures approximately 1" 
in width, 1%" in length and %" in depth. These boxes and cartons are 
similar in size, description and contents to those of other manufacturers in
1 Sec.  403   (d)    A Food shall be deemed to be misbranded—If its container is so 
made, formed, or filled as to be misleading.    21 U. S. C. § 343 (d)  (1940).
the trade. He denied that they were misbranded and prayed for, a dismissal 
of the libel.
"The question is whether the containers of the article were so made, formed 
or filled as to be misleading thereby constituting misbranding within the 
meaning of § 403 (d) of the Act.
"The libelant contends that the libelee has violated the provisions of § 403 
(d) of the Act by shipping in interstate commerce packages of food, in this 
instance candy, which are slack-filed, that is, in containers only partly filled 
with candy and partly filled with wrapping and is so prepared that it would 
be a source of deception to the public. It contends that the containers are 
less than 50 per cent filled with candy and refers to the Congressional history 
of the Act to demonstrate that slack-filling was one of the things that Congress 
meant to prohibit for the protection of the public.
"There was produced in evidence for the libeUant one of six large con- 
tainers which had been taken from the 193 cartons originally shipped in 
interstate commerce and marked 'Exhibit 1.' A witness for the libeUant 
testified that the large cartons were flat and rectangular in shape, with flaps at 
both ends, and that they contained eighteen small cartons which completely 
filled the larger one. From each of three large cartons there were taken five 
small units containing candy. The candy was unwrapped and it was deter- 
mined that the average dimensions per piece of candy was 1.05 cubic inches. 
The internal volume of the small cartons was determined to be 2.32 cubic inches. 
The candy occupied 45.3 per cent of the entire volume of the carton. He also 
testified that it was due to bulky wrapping that the candy appeared to fill 
the package adequately but he said that if the wrapped candy were pressed 
tightly against the side of the carton a considerable amount of space became 
apparent and if the wrapped candy were pressed toward the end of the box a 
considerable end space also became evident. He also said that when the 
paper was removed and the candy placed back in the box it was pretty loose. 
Certain small containers were handed to the judge and the witness demon- 
strated what his report meant.
"There is no hard and fast rule as to what would constitute slack-filling. 
Whether or not over 50 per cent space in a particular package of candy was 
slack-filling is a question of fact for the district court to decide. It had before 
it samples of the containers, both large and small; it examined them and com- 
mented on the fact that apparently there was a very slight space in the package.
"In making its decision the court referred to the fact that there was no evi- 
dence before it that containers of the type of Exhibit 1 had been 'palmed off' on 
the public, and also that there was no testimony on behalf of the libeUant that 
the markings would be misleading or would likely be misleading to an average 
purchaser, and seemed to rely upon the fact that proof of actual deception in 
the sale of the candy was necessary, citing United States v. 2 Bags, etc., of 
Poppy Seeds, 54 F. Supp. 706 (N. D. E. D. Ohio, 1944). However this case 
had been overruled by the Circuit Court of Appeals, United States v. 2 Bags, 
etc., of Poppy Seeds, 147 F. (2d) 123 (C. C. A. 6th, 1945). Whether or not the 
articles in question had been 'palmed off' on the public or whether or not 
the markings on the package were proper markings were questions not relevant 
to the issue in this case which the district court was called upon to consider.
"Although the trial court did refer to these conditions which are covered by 
other sections of the Act, it nevertheless held that there was no testimony to the 
effect that the boxes could hold approximately 50 per cent more candy, and was 
not convinced by the testimony that the wrapping and size were misleading. 
It stated that it would be 'stretching the statute all out of proportion to its pur- 
pose if it were to find on the evidence in this case, dealing with this particular 
nougat, the way it is shaped and wrapped, that that container was so made, 
formed or filled as to be misleading,' and that there was nothing 'in the shape 
and size of the larger package or the smaller packages that would be misleading 
to a person.' Moreover, the court held that it could not as a matter of law say 
either that the product has been misbranded or that its 'containers are so 
made, formed or filled as to be misleading.'
"The Federal Rules of Civil Procedure govern proceedings on appeals in 
actions for the forfeiture of property for violation of a statute of the United 
States. Rule 81 (a) (2). This case is an action under the Federal Food, 
Drug and Cosmetic Act of 1938, which is a statute of the United States and is 
on appeal before us.   Under Rule 52 (a) of said Rules, findings of fact shat
not be set aside unless clearly erroneous. We cannot say the finding that the 
container was not so made, formed or filled as to be misleading is clearly 
erroneous.
"The decree of the District Court is affirmed."