United States v. 46 CASES, MORE OR LESS, ETC., Misc. No. 634.

• Citation: 204 F. Supp. 321
• Decision Date: 26 March 1962
• Docket Number: Misc. No. 634.
• Parties: UNITED STATES of America v. 46 CASES, MORE OR LESS, Each Containing 24 Packages of an Article Labeled in Part: (pkg.) "WELCH'S NUT CARAMELS Net Weight 8 Ozs. * * * James O. Welch Company, Los Angeles, Calif., Cambridge, Mass. * * *", James O. Welch Company, Claimant.
• Court: U.S. District Court — District of Rhode Island

204 F. Supp. 321

UNITED STATES of America v. 46 CASES, MORE OR LESS, Each Containing 24 Packages of an Article Labeled in Part: (pkg.) "WELCH'S NUT CARAMELS Net Weight 8 Ozs. * * * James O. Welch Company, Los Angeles, Calif., Cambridge, Mass. * * *", James O. Welch Company, Claimant.

Misc. No. 634.

United States District Court D. Rhode Island.

March 26, 1962.

Raymond J. Pettine, U. S. Atty., William J. Gearon, Asst. U. S. Atty., Providence, R. I., William E. Brennan, Food & Drug Adm., Washington, D. C., for plaintiff.

Paul V. Power, of Gaston, Snow, Motley & Holt, Boston, Mass., William H. Edwards, of Edwards & Angell, Providence, R. I., for defendant.

DAY, District Judge.

This is a libel brought under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., for the condemnation of 46 cases, more or less, each containing 24 packages of "Welch's Nut Caramels". It was originally filed in the District Court for the Northern District of Illinois and was removed to this District for trial by stipulation of the parties under the provisions of 21 U.S.C.A. § 334(a).

The libel charges that said candy was misbranded in two respects when introduced into and while in interstate commerce, viz.:

(1) that it was misbranded within the meaning of 21 U.S.C.A. § 343(a) "in that the label statement `Nut Caramels' is misleading in view of the inconspicuousness of the ingredient statement which declares peanuts as the only nut ingredient."

(2) that it was misbranded within the meaning of 21 U.S.C.A. § 343(f) "in that the information required by Sections 343(e) (2) and (i) (2) to appear on the label, namely, quantity of contents and ingredient statements, is not prominently placed on the label with such conspicuousness (as compared with other words and statements on the label) as to render such information likely to be read by the ordinary individual under customary conditions of purchase and use."

The claimant, James O. Welch Company, admits that the packages involved herein were shipped by it in interstate commerce. It also admits that the only nuts in said candy are peanuts. The sole issue is whether said candy was misbranded as charged.

During the trial the Government introduced in evidence three of said packages as being typical of those seized by it and which it seeks to have condemned. In addition, it presented the testimony of a psychologist that the words "NUT CARAMELS" appearing on the label of said packages were many times more visible than the net weight and list of ingredients statements thereon. However, he did testify that the net weight and ingredients statements could be easily read by the average individual at a distance of approximately 29 inches. The Government also presented expert testimony by an allergist that some individuals are allergic to peanuts. Under cross-examination this expert witness stated that more individuals were allergic to other kinds of nuts. He also testified that technically the peanut is not a nut, but a legume.

The sole witness called by the claimant was one of its officers. He testified that in the candy making business the peanut is universally considered as being a nut. He further testified that during the many years of his association with the claimant he had never received or known of a complaint by a consumer that he had been misled by the description "NUT CARAMELS" appearing on the label of the packages containing said candy.

No evidence was offered by the Government to the effect that the ordinary consumer did not consider the peanut to be a nut, nor did it undertake to show by any evidence that ordinary consumers have been misled by the labeling on said...