United States v. Article of Food Consisting of 432 Cartons

• Decision Date: 01 October 1968
• Docket Number: No. 67 Civ. 5025.,67 Civ. 5025.
• Citation: 292 F. Supp. 839
• Parties: UNITED STATES of America, Plaintiff, v. An ARTICLE OF FOOD CONSISTING OF 432 CARTONS, MORE OR LESS, each CONTAINING 6 INDIVIDUALLY WRAPPED CANDY LOLLIPOPS OF VARIOUS FLAVORS [ETC.], Defendant.
• Court: U.S. District Court — Southern District of New York

292 F. Supp. 839

UNITED STATES of America, Plaintiff, v. An ARTICLE OF FOOD CONSISTING OF 432 CARTONS, MORE OR LESS, each CONTAINING 6 INDIVIDUALLY WRAPPED CANDY LOLLIPOPS OF VARIOUS FLAVORS ETC., Defendant.

No. 67 Civ. 5025.

United States District Court S. D. New York.

October 1, 1968.

Robert M. Morgenthau, U. S. Atty., for the Southern Dist. of New York, for United States, by Simon P. Gourdine, Asst. U. S. Atty., New York City.

Sydney B. Schlessel, New York City, for claimant, A. Freed Novelty, Inc.

MANSFIELD, District Judge.

This is a libel for condemnation instituted under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a), on the ground that the article of food seized was misbranded when introduced into interstate commerce. The complaint for forfeiture alleges that the labeling of the article is false or misleading and that therefore the food is misbranded under 21 U.S.C.A. § 343(a). Claimant, the owner of the goods, has admitted the jurisdiction of the Court over this matter, but denies that the article of food is misbranded. It also raises two affirmative defenses. The United States has moved for a judgment of condemnation on the pleadings pursuant to Rule 12(c), F.R.Civ.P. Since matters outside the pleadings have been presented to and not excluded by the Court, the motion pursuant to Rule 12(c) can and shall be treated as one for summary judgment under Rule 56, F.R.C.P.

The article of food in question consists of about 432 cartons each containing six lollipops. On the outside the carton is labeled on top "Candy * * * for one with Sophisticated Taste," on one side, "A. Freed Novelty, Inc., N.Y.C.," and on the other side, "Ingredients: Sugar, corn syrup, citric acid, natural and artificial flavors." The inside of the box contains the legend, "Liquor Flavored Lollypops," and the slogan, "Take Your Pick of a Liquor Stick." In addition the lollipops themselves are labeled, both in the box and on the cellophane in which they are individually wrapped, as "Scotch," "Bourbon," and "Gin."

The Government contends that the internal labeling is false or misleading in that it implies and represents that "the article is flavored with liquor, which it is not." In response claimant does not allege that the lollipops are flavored with liquor, but by way of affirmative defenses contends that they are not misbranded because the cartons are clearly labeled "candy" and the ingredients are distinctly set forth, and that the ordinary purchaser would not read or understand it to represent that the lollipops contain any alcohol or liquor.

In approaching the question of whether the labeling here was false and misleading within the meaning of the statute, we recognize that the statute does not provide for much flexibility in interpretation, see United States v. 95 Barrels * * * Apple Cider Vinegar, 265 U.S. 438, 44 S.Ct. 529, 68 L.Ed. 1094 (1924), since it requires only that the labeling be false or misleading "in any particular." (emphasis supplied) 21 U.S.C.A. § 343(a). This represents a stricter substantive standard than that applied with respect to false advertising, which in order to be prohibited must be "misleading in a material respect." (emphasis supplied) 15 U.S.C.A. § 55(a). See Developments in the Law—Deceptive Advertising, 80 Harv.L.Rev. 1106, et seq. (1967). Furthermore the statute says "false or misleading." For instance, the use of the term "fruit flavored" on a pudding product has been held after a trial on the merits to be false and misleading even though the product was manufactured from grain which, while botanically a fruit, was not a fruit in common parlance. United States v. 150 Cases of Fruit Puddine, 211 F. 360 (D. Mass.1914).

The issue of whether a label is false or misleading may not be resolved by fragmentizing it, or isolating statements claimed to be false from the label in its...