28913. Misbranding of canned cherries.    IT. S. v. 408 Cases of Canned Cherries.
Decree of condemnation and forfeiture.    Product ordered released under 
bond for relabeling:.    (F. & D. No. 41501.    Sample No. 2610-D.)
This product was substandard because of the presence of excessive pits, and 
it was not labeled to indicate that it was substandard.
On or about January 26, 1938, the United States attorney for the Western 
District of Oklahoma, acting upon a report by the Secretary of Agriculture, 
filed in the district court a libel praying seizure and condemnation of 408 cases 
of red pitted cherries at Lawton, Okla., alleging that the article had been 
shipped in interstate commerce on or about August 5,1937, by H. C. Hemingway 
& Co. from Lockport, N. Y., and charging misbranding in violation of the Food 
and Drugs Act. The article was labeled in part: "Schuyler Pitted Red Cherries 
in Water   Distributed By H. C. Hemingway & Co. Auburn N. Y."
It was alleged to be misbranded in that it was canned food and fell below 
the standard of quality and condition promulgated by the Secretary of Agri- 
culture, since it contained more than 1 cherry pit per 20 ounces of net contents, 
and the label on the package did not bear a plain and conspicuous statement, as 
prescribed by the Secretary of Agriculture, to the effect that it fell below such 
standard.
On February 1, 1938, H. C. Hemingway & Co., having appeared as claimant 
and having admitted the allegations of the libel, judgment of condemnation 
was entered and the product was ordered released under bond conditioned that 
it be relabeled in compliance with the law.
M. L. WILSON, Acting Secretary of Agriculture.