United States v. Cataldo, 4173.

• Decision Date: 31 October 1946
• Docket Number: No. 4173.,4173.
• Citation: 157 F.2d 802
• Parties: UNITED STATES v. CATALDO.
• Court: U.S. Court of Appeals — First Circuit

157 F.2d 802 (1946)

UNITED STATES v. CATALDO.

No. 4173.

Circuit Court of Appeals, First Circuit.

October 31, 1946.

Vincent A. Kleinfeld, Atty., Dept. of Justice, and James B. Goding, Atty., Federal Security Agency, both of Washington, D. C., Theron L. Caudle, Asst. Atty. Gen., George F. Troy, U. S. Atty., and Joseph L. Breen, Asst. U. S. Atty., both of Providence, R. I., for appellant.

Michael Carchia and Charles B. Garabedian, both of Boston, Mass., for appellee.

Before MAHONEY, GOODRICH (by special assignment) and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

This is an appeal from the dismissal of a libel brought under the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, 21 U.S.C.A. § 301 et seq., for the condemnation of certain articles of food consisting of 193 cartons, more or less, each containing 18 boxes of a food labeled in part: "Benevento Brand Nougat Net Weight 9 Ounces Contains 18 Pieces Weighing ½ Ounce Each, Consisting of Sugar, Honey, Almonds, Egg Whites, Cinnamon, Wafer * * *", which were shipped in interstate commerce from Boston to Providence. The libel charged misbranding within the meaning of § 403(d)¹ of the Act in that its container is so filled as to be misleading since the boxes could hold approximately 50 per cent more candy.

In his answer the claimant sought the return of the articles alleging that he was the owner of the Liberty Chocolate Company which shipped the articles from Boston to Providence in interstate commerce and denied that they were misbranded and liable to seizure and condemnation. He averred that he had manufactured and packaged the articles under his individual name for a long time and that the large carton measures approximately 6" × 8" and is 1 1/8" deep and each carton contains 18 small boxes; each small box measures 1¼" in width, 2" in length and about 1" in depth, and bears the same description and representation as the outer package; that each of these small boxes contains one piece of candy, one-half ounce in weight, known as "Torrone". Each piece is wrapped with a piece of wafer and measures approximately 1" in width, 1 7/8" in length and ½" in depth. These boxes and cartons are similar in size, description and contents to those of other manufacturers in the trade. He denied that they were misbranded and prayed for a dismissal of the libel.

The question is whether the containers of the article were so made, formed or filled as to be misleading thereby constituting misbranding within the meaning of § 403(d) of the Act.

The libellant contends that the libelee has violated the provisions of § 403(d) of the Act by shipping in interstate commerce packages of food, in this instance candy, which are slack-filled, that is, in containers only partly filled with candy and partly filled with wrapping and is so prepared that it would be a source of deception to the public. It contends that the containers are less than 50 per cent filled with candy and refers to the Congressional history of the Act to demonstrate that slack-filling was one of the things that Congress meant to prohibit for the protection of the public.

There was produced in evidence for the libellant one of six large containers which had been taken from the 193 cartons originally shipped in interstate commerce and marked "Exhibit 1". A witness for the libellant testified that the large cartons were flat and rectangular in shape, with flaps at both ends, and that they contained 18 small cartons which completely filled the larger one. From each of three large cartons there were taken five small units containing candy. The candy was unwrapped and it was determined that the average dimensions per piece of candy was 1.05 cubic inches. The internal volume of the...