United States v. 651 CASES, ETC., Civ. No. 4537.
| Court | United States District Courts. 2nd Circuit. United States District Court of Northern District of New York |
| Citation | 114 F. Supp. 430 |
| Decision Date | 10 June 1953 |
| Parties | UNITED STATES v. 651 CASES, MORE OR LESS, OF CHOCOLATE CHIL-ZERT. |
| Docket Number | Civ. No. 4537. |
114 F. Supp. 430
UNITED STATES
v.
651 CASES, MORE OR LESS, OF CHOCOLATE CHIL-ZERT.
Civ. No. 4537.
United States District Court N. D. New York.
Argued May 11, 1953.
Decided June 10, 1953.
Edmund Port, Syracuse, N. Y., U. S. Atty., for the United States.
Hancock, Dorr, Ryan and Shove, Syracuse, N. Y., for claimant. Edward B. Williams, Washington, D. C., and Morris Berman, Syracuse, N. Y., of counsel.
BRENNAN, Chief Judge.
On September 30, 1952, about 650 cases of Rich's Chocolate Chil-Zert was seized at New Orleans, Louisiana, under the provisions of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 334. The libel alleged that the food product known as "Chil-Zert" is misbranded in that it is an imitation of another food to-wit, chocolate flavored ice cream and fails to bear the word "imitation" followed by the name of the food imitated as required by the provisions of 21 U.S.C.A. § 343(c) and that it was further misbranded in that its label fails to bear the name of each ingredient as required by the provisions of 21 U.S.C.A. § 343(i)(2). The case was removed to this district under the provisions of 21 U.S.C.A. § 334(a).
Claimant has moved to dismiss the libel insofar as the misbranding charged under Section 343(c) is concerned, for failure to state a claim upon which relief can be granted, and for a summary judgment dismissing said charge. Federal Rules of Civil Procedure, 12(b) and 56, 28 U.S.C.A. The government has made a cross-motion for a summary judgment condemning the food in question; the motion being addressed to the same allegation of misbranding as is affected by claimant's motion.
The moving papers here consist of the libel, an affidavit with exhibits attached executed by the president of the claimant, libellant's requests for admissions, and the claimant's reply thereto. The motion is then to be treated as one for summary judgment. F.R.C.P. 12(b).
The problem here involves the construction and application of that part of the section of the Federal Food, Drug and Cosmetic Act quoted below:
Sec. 403. "A food shall be deemed to be misbranded—
* * * * * *
"(c) If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word `imitation' and, immediately thereafter, the name of the food imitated." 21 U. S.C.A. § 343(c).
Imitation is initially a question of fact, but both parties agree that there are no material facts in dispute, and the question becomes one of law.
Chil-Zert is a food product manufactured at Buffalo, New York, and the cases seized were shipped in interstate commerce to
The food sought to be condemned is packaged in pint carton containers with the words "Rich's Chocolate Chil-Zert" prominently printed on the four sides of the container and on the top and bottom thereof. Immediately below the words quoted above and...
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Grocery Mfrs. of America, Inc. v. Gerace, Nos. 177
...their mention on the label." Id. New York also refers us to United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430 (N.D.N.Y.1953) (Chil-Zert ), which, drawing on the Supreme Court precedents, attempted to flesh out the judicial definition of imitation. "......
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Grocery Mfrs. of America, Inc. v. Gerace, No. 83 Civ. 8629 (HFW).
...340 U.S. 593, 599-600, 71 S.Ct. 515, 519-520, 95 L.Ed. 566 (1951); United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430, 432 (N.D.N.Y.1953). In each of these cases, the Courts struggled with the definition of the term "imitation" and considered whether......
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National Pork Producers Council v. Bergland, Civ. No. 79-431-C.
.... . . to the understanding of ordinary English speech". Id. at 599, 71 S.Ct. at 519. In United States v. 651 Cases, Etc., 114 F.Supp. 430 (N.D.N.Y. 1953), the court noted that "the word imitation connotes inferiority . . . in the sense that the product is cheapened by the substitu......
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General Foods Corp. v. Priddle, No. 82-4111.
...260 Wis. 471, 476-477, 51 N.W.2d 34, 52 N.W.2d 791. But see, United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, D.C., 114 F.Supp. 430, 432-433. However, our statute speaks not simply of "imitation," but of "imitation or semblance" (emphasis supplied). We a......
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Grocery Mfrs. of America, Inc. v. Gerace, Nos. 177
...their mention on the label." Id. New York also refers us to United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430 (N.D.N.Y.1953) (Chil-Zert ), which, drawing on the Supreme Court precedents, attempted to flesh out the judicial definition of imitation. "......
-
Grocery Mfrs. of America, Inc. v. Gerace, No. 83 Civ. 8629 (HFW).
...340 U.S. 593, 599-600, 71 S.Ct. 515, 519-520, 95 L.Ed. 566 (1951); United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430, 432 (N.D.N.Y.1953). In each of these cases, the Courts struggled with the definition of the term "imitation" and considered whether......
-
National Pork Producers Council v. Bergland, Civ. No. 79-431-C.
.... . . to the understanding of ordinary English speech". Id. at 599, 71 S.Ct. at 519. In United States v. 651 Cases, Etc., 114 F.Supp. 430 (N.D.N.Y. 1953), the court noted that "the word imitation connotes inferiority . . . in the sense that the product is cheapened by the substitu......
-
General Foods Corp. v. Priddle, No. 82-4111.
...260 Wis. 471, 476-477, 51 N.W.2d 34, 52 N.W.2d 791. But see, United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, D.C., 114 F.Supp. 430, 432-433. However, our statute speaks not simply of "imitation," but of "imitation or semblance" (emphasis supplied). We a......