28863. Misbranding of canned cherries.    U. S. v. 61 Cases of Cherries.    Default
decree of condemnation.    Product delivered to charitable institution.
<F. & D. No. 41669.    Sample No. 67645-C.)
This product was packed in water and fell below the standard for fill of con- 
tainer established by this Department but was not labeled to indicate that it was 
substandard.    It was also short weight.
On February 11, 1938, the United States attorney for the Northern District of 
Illinois, acting upon a report by the Secretary of Agriculture, filed in the district 
court a libel praying seizure and condemnation of 61 cases of canned cherries at 
Chicago, Ill., alleging that the article had been shipped in interstate commerce 
on or about August 3, 1937, from Frankfort, Mich., by the Elberta Packing Co., 
and charging misbranding in violation of the Food and Drugs Act. The article 
was labeled in part: "Telmo Brand Red Sour Pitted Cherries * * * Dis- 
tributed by Franklin MacVeagh & Co., Chicago."
It was alleged to be misbranded in that the statement on the label, "Contents 
1 Lb. 5 Oz. And.," was false and misleading and tended to deceive and mislead 
the purchaser when applied to an article that was short weight; in that it was 
food in package form and the quantity of the contents was not plainly and con- 
spicuously marked on the outside of the package since the quantity stated was not 
correct; and in that it was canned food and fell below the standard of quality, 
condition, and fill of container promulgated by the Secretary of Agriculture for 
such canned food, since the cherries were packed in water and their drained 
weight was less than 13.5 ounces, and its package or label did not bear a plain 
and conspicuous statement prescribed by the Secretary of Agriculture indicating 
that such canned food fell below such standard.
On April 28, 1938, no claimant having appeared, judgment of condemnation 
was entered and the product was ordered delivered to a charitable institution.
M. L. WILSON, Acting Secretary of Agriculture.