13492. Alleged Misbranding of Ayds vitamin and mineral candy.    U. S. v. 61
Boxes,  etc.    Libel ordered dismissed.     (F. D.  C. No. 9461.     Sample No. 
19667-F.)
LIBEL FILED :   March 1,1943, District of Massachusetts.
ALLEGED SHIPMENT : On or about January 25, 1943, by the Carlay Co., from Chi- 
cago, Ill.
PRODUCT: 61 1-pound boxes and 69 2-pound boxes of Ayds vitamin and min- 
eral candy at Boston, Mass. Examination indicated that the product was 
essentially caramel candy.
NATURE OF CHARGE: Misbranding, Section 403 (a), certain statements in the 
labeling of the article were false and misleading, since they represented and 
suggested that use of the product made easy the loss of body weight, either 
quickly or slowly, whereas the use of the article would have no effect in caus- 
ing loss of body weight; and the label designation "Ayds," by reason of repre- 
sentations made by or on behalf of the manufacturer and owner, had acquired 
the meaning "aids in reducing" when used in association with candy which was 
to be eaten by obese individuals as part of a plan for reducing excess fat, and 
having acquired and attained such meaning in such association, was false and 
misleading as applied  to candy that did not aid in reducing weight.
the allegations of misbranding. The claimant also filed a motion for removal 
of the proceeding to another district, which motion was opposed by the Govern- 
ment on the grounds that the law does not authorize removal of an action based 
upon an alleged misbranding when such misbranding has been the basis of a 
prior judgment in favor of the Government in criminal, injunction, or libel pro- 
ng ceedings, and that judgments had been entered in favor of the Government in 
several libel proceedings involving labeling which although differing sub- 
stantially in wording, raised the same issue, namely, whether Ayds candy is 
effective in causing loss of body weight. After considering the brief of the 
parties, the court ruled as follows:    '
HEALY, District Judge: "Since the prior proceedings cited by the United 
States in its brief were not 'based upon the same * * * misbranding' 
within the meaning of Section 334 of Title 21 of the United States Code, I am 
of the opinion that this libel comes within the removal provision of that section. 
The proceedings will be removed to the United States District Court for the 
Eastern District of Wisconsin."
,In accordance with the foregoing opinion, an order was entered on April 
28,1943, for removal of the case for trial to the Eastern District of Wisconsin. 
Thereafter, the claimant filed a motion in the Eastern District of Wisconsin 
for removal of the case to the Northern District of Illinois for trial, for the 
reason that the trial in the Eastern District of Wisconsin would cause undue 
and unnecessary hardship to the claimant and would cause great inconvenience 
to the claimant's witnesses. On June 7, 1943, and without objection by the 
Government's attorney, an order was entered directing the removal of the 
case to the Northern District of Illinois. A motion to vacate the order of June 
7 was subsequently filed in the Eastern District of Wisconsin and was denied 
on April 24,1944. On September 18,1944, pursuant to a motion by the United 
States Attorney for the Northern District of Illinois, the case was dismissed.