or the smaller package that would be misleading to a person." The District Court was, therefore, affirmed in its conclusion that it could not be said as a matter of law, either that the product had been misbranded, or that its container had been so made, formed or filled as to be misleading.
In another similar case, United States v. 116 Boxes, etc., Arden Assorted Candy Drops, D.C.Mass.1948, 80 F.Supp. 911, the Government unsuccessfully sought condemnation of packages of candy charging misbranding under § 403(d) of the Act. In that case also the package was accused of being slack-filled, where, as a result of the settlement of the contents there was an average air space left in the box after filling of 33 1/3 percent. There was no evidence as to how many pieces of candy any consumer would expect to receive from a box of the type complained of. The District Judge there concluded, as a matter of law, that the seized shipment did not violate the Act and that the libel should be dismissed. The Court in that case said (at page 913): 'The question whether the package is misleading is a question of fact. And the standard is not whether experts or men of peculiar training, experience, shrewdness or sophistication would be misled * * *. The standard is whether the container would be likely to mislead the ordinary purchaser of this type of merchandise, not one who was particularly attentive or prudent * * *. In the case at bar no evidence was introduced as to what an ordinary non-infantile purchaser would expect. But in my view he would not expect any particular number of lozenges. So long as he received ordinary lozenges not obviously so eccentric in shape as to result in peculiar packaging difficulties, and so long as he received approximately as many of these lozenges as could conveniently be packed in a standard rectangular carton by machine, he would not in my opinion be misled.'
In the case at bar, despite the evidence which indicated that certain purchasers of the accused containers were 'surprised' to find when boxes were opened that there were not more candies therein, and despite the psychological effect of length or size of container upon the inclination of a consumer to purchase a food product, I am not persuaded by the evidence in this case that the Government has carried the burden of proof cast upon it, that the seized articles are misbranded under the section of the statute relied upon. The case is, in my opinion, lacking in adequate proof that the average adult, of normal intelligence, would be induced by the exterior appearance of the accused containers to buy a box of Delson mints with the expectation that it would contain any particular number of individual candies. The evidence in this case is overwhelmingly persuasive that the exigencies of machine filling, handling and shipping of separate pieces of candy in interstate commerce require that less than the total interior volume of the box in which they are contained be occupied by the candies. The accused method of packaging here under consideration involves, within the container, spaces unoccupied by candy. It also appears that the boxes of claimants' candy in evidence, of which the Government complains, would permit the inclusion of more pieces of candy than they customarily contain. The net weight of candy in each package however is disclosed on the exterior thereof, and there is no evidence that the retail price charged for the box of the candy is disproportionate to the net weight nor inappropriate to the quality of the contents. I fail to find in the evidence that the containers used by the claimants are made, formed or filled in such a manner as to be misleading within the contemplation of 21 U.S.C.A. § 343(d).
In view of the foregoing findings and conclusions, which shall be deemed compliance with F.R.Civ.P. 52, 28 U.S.C.A., it becomes unnecessary to consider the constitutional question upon which decision was reserved at the trial. I, therefore, conclude that the seized articles are not misbranded, and direct that they be restored to the claimants, and that the libel herein be dismissed.
An appropriate order may be presented according with the views herein expressed.
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