14769. Misbranding of candy.   U. S. v. 274 Boxes   *   *   *.   Decree of condem¬
nation.   (F. D. C. No. 16709.   Sample No. 7116-H.)
LIBEL FILED :    July 23,1945, District of New Jersey.
ALLEGED SHIPMENT : On or about June 20 and 27, 1945, by the Life Savers Corp., 
from Port Chester, N. Y.
PRODUCT:   274 boxes, each containing 20 packages, of candy at Newark, N. J.
LABEL, IN PART:    (Roll) "Wild Cherry Life Savers."
NATURE OF CHARGE: Misbranding, Sections 403(a) and 403(f), the charges ap- 
pear in the court's findings of fact.
DISPOSITION : On June 15,1949, following a pretrial conference, the court made 
the following findings of fact:
LEDEELE, District Judge: "This is a proceeding for the seizure and con- 
demnation of a food (candy) brought by the Government under the Food, Drug 
and Cosmetic Act of 1938. ,The libel of information herein was filed on July 
23, 19.45, alleging that the seized goods, approximately 274 boxes of a candy 
called Life Savers (Wild Cherry flavor), were misbranded under 21 U. S. C. 
343(a) 'in that the label designation "Wild Cherry" is false and misleading as 
applied to a product which is artificially flavored and colored,' and within 
the meaning of 21 U. S. C. 343(f) 'in that the information required by and 
under authority of the Federal Food, Drug and Cosmetic Act to appear on the
label, namely, the name and place of business of the manufacturer, packer, or 
distributor; an accurate statement of the quantity of the contents; and the 
common or usual name of each ingredient, is not prominently placed on the 
label with such conspicuousness (as compared with other words, statements, 
designs, or devices in the labeling) as to render such information likely to be 
read by the ordinary individual under customary conditions of purchase and 
use, since the required statements are printed in such small type and on such 
a background as to be practically invisible.'
"When seized, the goods were in the possession of a distributor in Newark, 
New Jersey. They were manufactured and sold and shipped in interstate com- 
merce to the distributor by Life Savers Corporation, a Delaware corporation 
having its principal place of business in Port Chester, New York. A default 
was entered before Life Savers Corporation had actual notice of the proceed- 
ings. Upon receiving such notice from the United States attorney, Life Savers 
Corporation filed its petition by which it sought to be relieved of the default 
and to be permitted to file an answer to the libel and enter its claim to the 
seized goods. Upon the consent of the Government an order was made on April 
29, 1946 vacating the default. Thereafter Life Savers Corporation duly filed 
its claim, answer to the libel and gave the required security for costs.
"Claimant's answer denied that the seized goods were misbranded and sub- 
ject to seizure and condemnation under 21 U. S, C. 334. Further answering 
the libel, claimant alleged that it had been forced by shortages of materials due 
to the war to abandon temporarily the use of gold lettering on its labels, and 
to use lettering which was less conspicuous but which, nevertheless, was the 
best it could do under the circumstances.
"Upon the joining of issue this cause was placed on the trial calendar and 
in due course was set for a pre-trial conference, which was had before Judge 
Smith on January 7,1947. It appearing that an understanding might be reached 
between the parties, Judge Smith adjourned the trial to see if a satisfactory 
compromise might not be reached. The negotiations of the parffes having 
failed to lead to a disposition of the case, it has come before me for trial.
"This proceeding does not concern either the prewar label or that now 
in use by claimant.
"It appears from statements made by counsel for claimant at this pre-trial 
hearing that for many years, the claimant has manufactured its Life Saver 
candies in a number of different flavors. Sales and distribution have been 
national in scope, and its products are widely known to the public. In 1934, 
it added to its line of goods the candy which has been seized. Its flavor, 
which is artificial, is called 'Wild Cherry.' So far as appears, no candy is 
sold commercially which is made with a natural 'Wild Cherry' flavoring. 
There are many candies currently on the market which are flavored with an 
artificial flavoring similar in character to that used by claimant. In the 
eleven years, from 1934 through 1944, claimant sold approximately 121,000,000 
packages of its 'Wild Cherry' candy, but it was not until the early part of 
1944 that claimant began use of the questioned label. In the early part of 
1944, claimant was forced to adopt a substitute for its regular label by war 
shortages and Government controls concerning paper and printing materials. 
Thus claimant adopted its 'war label' which is on the goods seized by the 
Government in this proceeding. This label is not as legible as that which has 
followed it in use. The value of the goods seized by the Government in these 
proceedings is insignificant. Although claimant has denied in its answer that 
the seized goods are misbranded, it appears from all of the circumstances 
that for all practical purposes the issues raised by the pleadings are moot. 
Claimant's chief concern is to avoid the hardships of a prolonged trial, and by 
way of compromise, and without prejudice, it is willing to terminate this pro- 
ceeding by permitting the seized goods to be condemned without further 
proceedings. The use of claimant's 'war labels' had been discontinued by the 
time this proceeding was first set for trial and their use has not since been 
resumed. The label now in use resembles in general appearance the claimant's 
pre-war label, save that information as to the artificial character of the 
flavoring appears on it in three places, and with greater prominence.
"The claimant's 'war label', used on the seized goods and alleged by the libel 
to constitute misbranding as aforesaid, are all that are now before the Court. 
The facts found and the decree which may be entered herein are limited in
application to. those labels, without prejudice to the rights of the claimant 
in the label presently used by it for Life Savers having an artificial wild cherry 
flavor. Furthermore, this proceeding is, of course, without prejudice to the 
right of the Government to challenge, should it see fit to do so, in a separate, 
new proceeding, the labels presently used by claimant to determine whether 
or not such new labels are in full compliance with the requirements of the 
statute. Upon the stipulation of counsel for claimant made without prejudice 
and by way of compromise only for the purpose of disposing of this proceeding, 
claimant concedes and upon its concessions I find the seized goods to be mis- 
branded in the respects alleged in the libel."
On the same date, the court entered a decree condemning the product and 
ordering its delivery to charitable organizations.
DAIRY PRODUCTS
CHEESE