7192. Misbranding of gift packages.    U. S. -v. 149 Gift Packages.    Counterclaim
praying for a declaratory judgment denied and exceptions to the libel 
overruled. Decree of condemnation and destruction. (F. D. C. No. 10095. 
Sample No. 11905-F.)
LIBEL FILED:    June 14, 1943, Northern District of California; transferred to the
Eastern District of New York on August 19, 1943. 
ALLEGED SHIPMENT:    On or about April 13, 1943, by R. L. Albert & Son, Inc.,
from New York, N. Y.
PRODUCT: 149 1-pound, 2-ounce gift packages at San Francisco, Calif. The 
package measured 1Y% x 12)4 x 1% inches and contained 16 fluted paper cups 
or cookies, candies, nuts, crackers, and a jar of peanut butter. The 3 cups 
containing cookies were well filled, but the candies and nuts were wrapped in 
cellophane which increased the bulk. Three cups containing crackers and 1 
containing a small jar of peanut butter, which occupied a corner of the package, 
were covered by an inverted cardboard box and over that a cardboard checker 
board with a small sticker label reading "Crackers and Peanut Butter Under- 
neath.'A The peanut butter was in a small ointment jar with thick walls, and 
did not fill the cup.
VIOLATION CHARGED: Misbranding, Section 403 (d), the container was so 
filled as to be misleading in that more candy and nuts could have been packed 
in the individual paper cups, and because the crackers, which were cheaper than 
the remainder of the package, and the deceptive jar of peanut butter were 
concealed in a corner covered by an inverted box.
DISPOSITION: August 9, 1943. R. L. Albert & Son, Inc., claimant, instituted 
in the District Court for the Southern District of New York an action for a 
declaratory judgment, and filed a petition for an injunction pendente lite with 
respect to the libel proceedings in the Northern District of California.    An
order to show cause was accordingly issued, and on August 11, 1943, argument 
was heard, after which decision was reserved. On August 19, 1943, the libel 
proceedings were transferred to the Eastern District of New York, and there- 
after the claimant withdrew its motion for an injunction pendente lite and filed 
notice withdrawing its action for a declaratory judgment.
The claimant then filed an answer in the Eastern District of New York, denying 
the allegation of misbranding, and containing a counterclaim which attacked 
the constitutionality of Section 403 (d) of the Federal Food, Drug, and Cos- 
metic Act, and prayed for a declaratory judgment.
The matter having been argued on November 24,1943, the court, on December 
11, 1943, handed down the following memorandum opinion: 
1      BYEES, District Judge: "Motion to strike counterclaim.
"In this cause the Government has libeled 149 Gift Packages of food stuffs, 
alleging them to be misbranded. They have been claimed by R. L. Albert & 
Son, Inc., in an answer which denies the alleged misbranding.
"The claimant does not in terms, except in the counterclaim, admit that it 
shipped the 149 Gift Packages in interstate commerce, although perhaps it 
meant to do so by inference, since so much of the libel is not denied. This 
does not meet the requirements of Admiralty Rule 26.
"The answer does deny misbranding within Title 21 U. S. C. (a), Section 
343-d, which provides that a food shall be deemed to be misbranded (d). If its 
•container is so made, formed, or filled as to be misleading', which is charged in 
"the libel.
"The answer contains a subdivision entitled 'Complete Defense and as a 
Counterclaim', which recites the claimant's corporate status and business; the 
•enactment by Congress of the statute under which the libel is filed; the seizure 
of these packaged in California and the consent to transfer the proceedings there- 
by initiated to this Court, and that the Federal Security Agency (charged with 
the enforcement of this law) has threatened similar proceedings elsewhere. 
That the statute is unconstitutional in that it deprives the claimant of its prop- 
erty without due process of law.
"It is alleged that, as the result of these matters, there is a controversy 
existing between the United States of America and the claimant, as to whether 
the enforcement of the Federal Food, Drug and Cosmetic Act does or does not 
unconstitutionally deprive the claimant of its property, and hence a declaratory 
judgment is sought to establish the unconstitutionality of the statute and the 
remedies thereunder.
"The libelant has moved to strike the counterclaim as being inappropriate to 
a proceeding which, as nearly as may be, is to conform to the procedure in 
Admiralty (Title 21 U. S. C. (A), Section 334-b).
"The theory of the statute is obviously that the seized articles of food have 
themselves violated the law, and this is an issue of fact.    'Upon demand of 
?either party any issue of fact joined in any such case shall be tried by jury.' 
(Section 334-b).
"In view of that provision, it is difficult to see how the requirements of due 
process have been evaded. Manifestly the burden of proof lies upon the Gov- 
ernment to sustain the material allegations of the libel, once issue is joined upon 
the merits.
"As to the availability of the declaratory judgment statute (Title 28 U. S.C. 
(A) Section 400) in a proceeding in Admiralty, there seems to be no decision 
which the Court has been able to find, nor have counsel cited any.
"The conventional method of testing the legal sufficiency of the articles in a 
libel is by filing exceptions thereto (Admiralty Rule 27); and that course has 
been found adequate by many years of experience.
"It is open to this claimant, and should be followed if it be advised that the 
Government is seeking to proceed herein according to methods not sanctioned 
by the constitution.
"While the counterclaim does not in terms ask for an injunction, if the dec- 
laration which it seeks were to be made, there would be in effect a decision 
"upon the constitutionality of a federal statute, having the same force and effect 
as an injunction, and it might well be argued, I think, that Title 28 U. S. C. (A), 
Section 380-a, ought to be applicable to such a situation.
"It has not been shown to the satisfaction of this Court, that a multiplicity 
of suits involving the same issue is threatened, nor can it be said that the make- 
up or constituency of these particular packages is an issue of such important 
legal scope that the otherwise non-conforming pleading should be allowed to 
.stand.
"Motion to strike the counterclaim is granted, without prejudice to the 
claimant's rights to challenge the libel by appropriate exceptions."
On February 2, 1944, the claimant filed exceptions to the libel, and thereafter 
made a motion for an order sustaining the exceptions and dismissing the Kbel. 
At the conclusion of the hearing on the matter, and after due deliberation, 
the court, on May 2, 1944, handed down the following memorandum opinion:
MOSCOWITZ, District Judge: "Exceptions have been filed to the libel based 
upon two grounds: One, that the libel is insufficient, and the other, that Section 
343 (d) of the U. S. Code is uncenstitutional.
"Section 343 (d) reads as follows: 'A food shall be deemed to be misbranded 
*    *    *    (d) If its container is so made, formed or filled as to be misleading/
" As I understand claimant's position, it is claimed that this is not sufficiently 
descriptive and would not afford an opportunity to a seller, packer or shipper 
to determine what is a proper container. The criticism is that this subdivision 
(d) also involves a conclusion rather than specifying the grounds sufficiently 
and for that reason is unconstitutional and that the claimant is thereby deprived 
of his property without due process of law.
"It seems to me that this provision is specific and does not violate any con-. 
stitutional rights of the claimant.
"As to the first ground, that the libel is insufficient, there has been produced 
to the Court for visual demonstration, Libelant's Exhibit 1, which is one of the- 
packages in question, which is substantially similar to the other packages shipped 
ifey claimant. I think the libel upon its face is complete-and sets forth a prima- 
facie cause of action; an examination of the Exhibit 1 indicates that a pur- 
chaser might he misled. It might very well be that upon the trial some other 
demonstration can be made; that it may very well be, as claimed by the claim- 
ant, that it was necessary to ship it in that way. However, I am not passing- 
upon that question; that is to be passed upon by the trial court.
"I will overrule exceptions to the libel."
On May 19, 1944, an order was issued denying the claimant's motion and 
overruling the claimant's exceptions to the libel. Thereafter the claimant 
withdrew its claim and answer, and on August 8, 1944, judgment of condemna- 
tion was entered and the product was ordered destroyed.