17804. Alleged Adulteration of candy and chewing gum. U. S. v. A quantity of 
candy, etc. Tried to the court. Verdict for the Government. Decree 
of condemnation.   Judgment reversed upon appeal.    (F. D.  C. No.
29066.   Sample Nos. 47684-K, 47685-K.)
LIBEL FILED : July 31, 1950, Eastern District of Virginia; libel amended Novem- 
ber 15,1950.
ALLEGED SHIPMENT :   On or about June 7 and 8, 1950, from Chicago, Ill.
PRODUCT: A quantity of candy containing trinkets held in one vending machine 
and a quantity of chewing gum containing trinkets held in another vending 
machine at Norfolk, Va.
LABEL IN PART: (Candy machine) "Fresh!-Tasty! One Cent" and (gum ma- 
chine) "Kail-Blo Ball Bubble Gum of."
NATURE OF CHARGE: ' Adulteration, Section 402 (a)  (1), the products contained 
deleterrous-BubstaircesT^plastic-and-metal-trinketsy-whieh-may-have-rendered- 
th$%artieles injurious to health; and, Section 402 (d), the products were con- 
fectionery and contained nonnutritive articles, plastic and metal trinkets.   The 
products were adulterated while held for sale after shipment in interstate
- - commerce. -
DISPOSITION : The Cavalier Vending Corp., Suffolk, Va., claimant, having filed 
an answer denying that the products were adulterated, the case came on for 
hearing before the court on November 28 and 29,1950. After considering the 
evidence and the arguments and briefs of counsel, the court, on February 7, 
1951, handed down the following opinion:
BBYAN, District JMffe: "The contents of two slot machines have been 
"libeled" as adulterated food, specifically, balls of candy and chewing gum as 
containing deleterious and non-nutritive substances, contraband under the 
Federal Food, Drug and Cosmetic Act, 52 Stat. 1040,21USCA 301 et seq. With 
the evidentiary facts undisputed, the lone question is whether the gum or 
candy was adulterated by the admixture of small metallic and plastic trinkets. 
The answer depends on whether the gum or candy 'contains' the trinkets.
"The slot machines are identical and no variant in them or their content 
necessitates separate consideration. The gum is in the form of a small marble, 
less than a half-inch in diameter, while the candy is somewhat smaller, but 
also spheroidal—a candy-coated peanut.
"The trinkets are made of plastic and metal, in the design of animals, clocks, 
hats, boots, balls, rings, and lapel-pins.   They are in bright and varied colors,
?See also No. 17850.
like the units of gum and candy, but except for the balls, the trinkets' differ 
from the units in shape, and some are smaller and others larger.
"The machine operates on the coin-in-the-slot principle. Its wares are held 
within a hollow glass globe, with the candy, gum and trinkets plainly visible, 
and promiscuously mingled. With the insertion of a coin and the ttlrn of a 
erank, the purchase pours from the bowl by gravity into a receptacle open to 
the Vendee. Each delivery of candy comprises 8 to 10 pieces, Usually With one 
or more trinkets, while a delivery of gum consists of one gum ball with or 
without a trinket. In random samples it was found that to a quarts of candy 
there were 840 peanuts and 21 trinkets, and a similar measure from the gum 
machine produced 225 pieces of gala with 65 trinkets.
"The candy and gum were shipped into Norfolk, Virginia, from Chicago, 
Illinois, and the trinkets from Dallas, Texas, but they were not mixed, until 
placed in the machines* in Norfolk, where they were seized. We think tfrH e 
can be no doubt that the mixture dispensed by each of the machines is within 
the interstate commerce sweep of the Act, section 304 (a), 21 USCA 334a, as 
'held for sale (whether or not the first sale) after shipment in interstate com- 
merce.' United States v. Sullivan, 332 U. S. 689. Hence we go to the merits 
immediately.
"and r the Act food Is defined to be ' (1) articles Used for food or drink for 
man or other animals, (2) chewing gum, and (3) articles used for components 
of any such article.' Sec. 201, 21 USCA 321. A food is declared to be adulter- 
ated by section 402, 21 USCA 342, under the following conditions, among others:
402(a) (1) ; "If it bears or contains any poisonous or deleterious substance 
which may render it injurious to health;    *    *    ¦••"
(d) : "If it is confectionery, and it bears or contains any alcohol or non- 
nutritive'article or substance   *    *    *"
''The contention of the owner is that neither the candy nor the gum, admit- 
tedly food in themselves, 'contains' the trinkets, that the trinkets are in no 
sense ingredients of the sweets, but physically separate as lures to prospective 
purchasers of the candy and gum, and that the candy and gum have within 
them no deleterious or non-nutritive substances.
"The Court is of the opinion that the indiscriminate confusion of the 
trinkets and candy, and trinkets and gum, especially in the low ratio of the 
trinkets, results in an indistinguishable mass of 'food,' and in this "condition 
"its certain that the~se~arrticles~of-food—do~contain-the-trinketsr-within-the 
intent and purpose of the Act. Obviously the trinkets are deleterious and 
non-nutritive substances. Except in the boots and lapel-pins, the color, design 
and intermixture of the trinkets so merge them with the candy and gum as to 
make them appear, certainly to the juvenile observer, as constituents and com- 
ponents "of the store of candy and gum. A glance into the hopper of the slot 
machine might not distinguish the trinkets as alien substances but simply as 
another sweetmeat. That the whole contents are edible might well be as- 
sumed, in this intimate association we think the candy and the gum eisitains' 
the trinkets, and in this manner the candy and gum have become adulterated.
"There are thus offered 'articles used for food' potentially injurious to the 
consumer and against which the Act would protect the public. While the 
trinkets are not edible, they are easily aspirated and readily swallowed. Cus- 
tomers of these slot machines are the neighborhood children and the case 
against the gum, candy and trinkets becomes stronger when we consider the 
imprudence and heedlessness of these penny-patrons—never too discerning 
in munching tidbits.
"United States v. Lexington Mill Co. 232 U. S. 399, does not preclude our 
holding—that in the Act 'contains' may mean 'associated with' and not ex- 
clusively 'incorporated in,' and that 'food' is not referable only to a unit but 
includes a serving or portion of units offered for consumption The English 
decision therein approved declared that the resulting blend must be detrimental 
to health; that it was not sufficient that a single ingredient was by itself 
an injurious element if not so in the combination. The facts there disclosed 
no confounding, as here, of the good and bad in such a way as to retain the 
full efficacy of the latter, without dilution to any degree. Nor was there a 
resemblance in the two, to let the uneatable pass as eatable.
"The case having been submitted without a jury, the Court makes, this 
memorandum as its findings of fact and conclusions of law. and will enter an 
order granting condemnation in accordance with the prayer of the libel."
On March 16, 1951, judgment of condemnation was entered and the court 
ordered that the products contained in the vending machines be destroyed and 
that the machines themselves be returned to the claimant. Thereafter, an 
appeal was taken by the claimant to the United States Court of Appeals for 
the Fourth Circuit, and ,on July 24, 1951, the following opinion was handed 
down by that court:
PARKER, Circuit Judge: "This is an appeal by claimant in a libel proceeding 
under the Federal Food, Drug and Cosmetic Act (21 USCA 301 et seq.) in which 
an order was entered condemning certain candy, chewing gum and metal 
plastic trinkets contained in vending machines. The principal question pre- 
sented by the appeal is whether under the facts of the case the candy and gum 
are adulterated within the meaning of the act.
"There is no dispute as to the facts. It is conceded that the candy and gum 
are not adulterated and do not of themselves fall within the condemnation of 
the act. The finding of adulteration is based upon the fact that after arrival 
in Norfolk, they were placed in vending machines along with the trinkets. 
The facts are succinctly and accurately set forth in the opinion of the learned 
judge below as follows:
The slot machines are identical and no variant in them or their content
necessitates separate consideration. The gum is in the form of a small 
marble, less than a half-inch in diameter, while the candy is somewhat 
smaller, but also spheroidal—a candy-coated peanut.
Trinkets are made of plastic and metal, in the design of animals, clocks, 
hats, boots, balls, rings, and lapel-pins. They are in bright and varied 
colors, like the units of gum and candy, but except for the balls, the 
trinkets differ from the units in shape, and some are smaller and others 
larger.
The machine operates on the coin in the slot principle. Its wares are 
held within a hollow glass globe, with the candy, gum and trinkets plainly 
visible and promiscuously mingled. With the insertion of a coin and 
the turn of a crank, the purchase pours from the bowl by gravity into a 
receptacle open to a vendee. Each delivery of candy comprises 8 to 10 
pieces, usually with one or more trinkets, while a delivery of gum consists 
of one ball with or without a trinket. In random samples it was found 
that to a quart of candy there were 840 peanuts and 21 trinkets, and a 
similar measure from the gum machine produced 225 pieces of gum with 
65 trinkets.
The candy and gum were shipped into Norfolk, Virginia, from Chicago, 
Illinois, and the trinkets from Dallas, Texas, but they were not mixed 
until placed in the machines in Norfolk, where they were seized.
"The finding of adulteration was based upon the idea that the mingling of 
the trinkets with the gum and candy resulted 'in an indistinguishable mass of 
food' which contained the trinkets within the meaning of sec. 402 (a) (1) of 
the Act, 21 USCA 342 (a) (1), which provides that food shall be deemed 
adulterated 'if it bears or contains any poisonous or deleterious substance 
which may render it injurious to health.'* The plastic or metallic trinkets 
would be injurious to health if swallowed or caught in the air passages of the 
nose or throat.
"We think it perfectly clear, however, that the trinkets, which correspond 
to the 'prizes' contained in the candy 'prize boxes' of an earlier day, are not 
contained within the gum or candy within any possible meaning of the act. 
If we look to its language the deleterious subject must be contained within 
the food product offered for sale, and the trinkets are not contained in the 
pieces of gum or candy but are merely sold along with them. Neither the 
gum nor the candy contains the trinkets but is contained along with the 
trinkets in the bowl of the vending machine.   The purpose of the statute is
121 USCA see. 342 provides : (The court quotes this see.).
to prevent, adulteration, i. e., the 'adding to articles of food consumption 
poisonous and deleterious substances which might render such articles in- 
jurious to the health of consumers.' United States v. Lexington Mill & Elevar 
tor Co., 232 U. S. 399, 409. Surely, the giving of trinkets or prizes along with 
the sale of candy or gum does not add anything to the 'articles of food con- 
sumption' nor do they affect such articles in any way. Cf. Bourcheiw v. 
Willow Brook Dairy, Inc., 268 N. Y. 1,196 N. E. 617,98 A. L. Rw 1492. We cannot 
imagine that anyone would contend that the statute would be violated if a 
single trinket were included as a 'prize' in a package of candy or gum; and we 
see no difference between this and the sale by the* slot machine method here 
employed, where only occasionally is one of the trinkets discharged, and the 
possibility that this may occur is one of the chief inducements to the purchase. 
If there is anything objectionable in what is done, it arises not out of any 
Adulteration of the candy or gum but out of the method of sale, which is a 
local' matter. No case has been cited holding that the statute has any^appli- 
cation to a case of this sort, and we know of none.
"There is a grave doubt whether, even if the vending of the trinkets along 
with the candy and gum could be held to be adulteration, the act would have 
any application since their mingling in the vending machines was a local 
matter which occurred after their interstate journey had ended and they had 
come to rest at Norfolk. There was no transmission of the 'adulterated' 
product in interstate commerce, nor was there an offering for sale of a product 
which was adulterated when a subject of such commerce. See United States v. 
Phelps Dodge Mercantile Co., 9 Cir. 157 F. 2d 453, cert. den. 330 U. S. 818. We 
„ need not pass upon this question, however, as we think it clear that the candy 
and gum were not adulterated within the meaning of the act merely because 
the trinkets were placed with them in the vending machines.
"For the reasons stated the order appealed from will be reversed and the 
cause will be remanded with direction to enter judgment for the claimant. 
Reversed."