19155. Adulteration of popped popcorn, alleged Adulteration of potato chips and
Fruits, and alleged Misbranding of popped popcorn. U. S. v. So Good 
Potato Chip Co. and Edward C. Causing. Motion of defendants for 
return of seized goods and suppression of evidence overruled. Motion 
of defendants for ijismissal of counts 1, 2, 3, 6, and 7 also overruled. 
Pleas of nolo contendere to counts 1 and 5. Motion of Government for 
dismissal of counts 2, 3, 4, 6, and 7 granted. Fine of $750 against 
company and $200 against individual. (F. D. C. No. 31078. Sample 
Nos. 78039-K, 78040-K, 93802-K, 93804-K, 31456-L, 31457-L.)
84 
FOOD,   DRUG,   AND   COSMETIC  ACT 
[F.N.J.
. So Good Potato Chip Co., a partnership, St. Louis, Mo., and Edward C. Causino, 
plant manager.
ALLEGED SHIPMENT : On or about December 4, 1950, and January 15, 1951, from 
the State of Missouri into the State of Illinois.
LABEL, IN PAEX: "SO Good Pop Corn * * * Net Weight 5 Ounces [or "2 
Ounces"]," "Potato Chips * * * Net Wt. 6 Oz.," and "Fritos * * * 
Net Wt. 4tY2 Oz."
NATURE OF CHARGE: Adulteration of popcorn (counts 1 and 5), Section 402 (a) 
(3), the article consisted in part of a filthy substance by reason of the presence 
of rodent hair fragments, larvae, insect fragments, larval cast skins, and 
pupae; and, Section 402 (a) (4), a portion of the popcorn had been prepared 
and packed under insanitary conditions whereby it may have become con- 
taminated with filth.
Alleged Misbranding of popcorn (counts 2, 6, and 7), Section 403 (e) (2), 
portions of the popcorn failed to bear labels containing an accurate state- 
ment of the quantity of the contents. The labels on such portions bore the 
statement "Net Weight 5 Ounces," which statement was inaccurate since the 
net weight of the packages containing such portions was less than 5 ounces.
Alleged Adulteration of potato chips and Fritos (counts 3 and 4), Section 
402 (a) (3), the articles consisted in part of a filthy substance by reason of 
the presence of rodent hair fragments, psocids, larvae, and insect fragments; 
and, Section 402 (a) (4), the articles had been prepared and packed under 
insanitary conditions whereby they may have become contaminated with filth.
DISPOSITION : The defendants entered a plea of not guilty on May 3, 1951. On 
May 15, 1951, a motion for the return of the seized property and the suppres- 
sion of evidence was filed on behalf of the defendants on the basis that per- 
mission to enter and inspect the factory premises of the company had not been 
given by an authorized person. The matter came on for hearing on or about 
June 19,1951, after which the matter was taken under advisement by the court 
for consideration of the arguments and briefs of counsel. On August 28, 1951, 
the court entered an order overruling the motion.
The defendants, on September 6, 1951, submitted a request for portions of 
the samples collected from the shipments alleged in the information. Pur- 
suant to this request, portions of the samples were furnished from the ship- 
ments alleged in counts 4 and 5. No portion of the samples involved in the 
other counts of the information was furnished. Thereafter, the defendants 
filed a motion to dismiss counts 1, 2, 3, 6, and 7, based upon the Government's 
refusal to furnish portions of the samples, as required by Section 702 (b) of the 
Act [21 U. S. C. 372 (b)]; and on or about September 21, 1951, a hearing was 
held in the matter. During the hearing, the defendants were offered a portion 
of the sample pf the popcorn from the shipment involved in counts 1 and 2. 
It was pointed out, however, that for the purposes of the misbranding charge 
against such shipment, as alleged in count 2, such sample portion was not 
suitahle to make a check analysis for net weight. Briefs subsequently were 
filed by counsel for the parties, and after consideration thereof, the court, 
on December 21,1951, overruled the defendants' motion and made the follow- 
ing comments:
HARPER, District Judge: "I am today entering an order overruling the de- 
fendant's motion to dismiss Counts 1, 2, 3, 6 and 7 of the Information. I think 
that the 9th Circuit Court of Appeals in the Triangle Company ease, 44 Fed. 
2nd 195, correctly stated the law with respect to Section 372 (b) of Title 21.
However, I do not believe that this section applies to Counts 2, 6 and 7 for the 
- reason that I do-not understand that 'analysis' has any reference to weighings. 
"With reference to Counts 1 and 3, while I am overruling the motion, this 
letter will serve to put the plaintiff on notice that unless Section 372 (b) is 
complied with that when this matter is reached for trial I will entertain a 
motion to dismiss those two and will dismiss them.
"With respect to Count 1, the plaintiff admits that the defendant's request 
can be complied with. With respect to Count 3, the plaintiff's testimony dis- 
' closes that it could not be complied with. In this particular instance the 
testimony disclosed that there were twice as many bags of the potato chips 
as there were of the popcorn collected, and had the same judgment been used 
with respect to the potato chips as was used with respect to the popcorn, 372 (b) 
could have been complied with. The fact that they used it all when the tes- 
timony disclosed there were six samples would indicate that they could have 
complied with the section had they wanted to, and while the sample they have 
now may not serve the purposes, unless it does so, when the trial is reached 
upon the proper motion I will strike the count."
On March 21, 1952, the defendants entered pleas of nolo contendere to 
counts 1 and 5 of the information, and upon the motion of the United States 
attorney, the court dismissed counts 2, 3, 4, 6, and 7 and imposed a fine of 
,  $750 against the company and a fine of $200 against the individual.
CHOCOLATE, SUGAR, AND RELATED PRODUCTS