The opinion of the court was delivered by: WORTENDYKE
On appeal from this Court's order of February 23, 1960 dismissing the Government's libel of information in this case, the Court of Appeals, 3 Cir., 1961, 287 F.2d 246, 248, vacated the judgment and remanded 'with the direction to proceed as the facts and the law require' because of this Court's failure to make the necessary findings of fact to support the legal conclusions which it reached. This Court's opinion in lieu of findings of fact and conclusions of law (F.R.C.P. 52, 28 U.S.C.) was filed February 10, 1960, and is reported at D.C., 180 F.Supp. 863. The Court of Appeals concluded that this Court failed to make either of the following findings: (1) 'that the accused package is not made, formed, or filled in such a way that it would deceive the ordinary purchaser as to the quantity of its contents;' (2) 'that even though the form or filling of the package deceives the ordinary purchaser into thinking that it contains more food than it actually does, the form and filling of the package is justified by considerations of safety and is reasonable in the light of available alternative safety features.' As the present writer reads the appellate Court's opinion, one or the other of the foregoing findings of fact is a sine qua non to a conclusion of law that claimant's container was not misbranded under 21 U.S.C.A. 343(d).
In compliance with the directive of the United States Court of Appeals for the Third Circuit, I find the following facts in this case:
1. Claimant's chocolate covered thin mints are approximately circular, but, unlike competitors' mints, are domeshaped, with one side convex and the other side flat, measuring approximately 1.5 inches in diameter and .28 of an inch in thickness.
2. The accused package or container in which the mints are packed is a rectangular cardboard box, the outside dimensions of which, inclusive of the wrapper, are 11.56" X 1.94" X 1.75", comprising an exterior volume of 39.2 cubic inches.
3. There are three compartments or sections of mints in the accused package or container, and each compartment contains ten mints, standing on edge in a horizontal row, or 30 mints in all per box.
4. Each compartment of the accused package is separated by hollow transverse dividers of cardboard which, in the process of manufacturing the box, are stamped from a cardboard sleeve and locked or anchored in place by tabs coming up from the bottom; and each end of the box has a hollow recess extending longitudinally into and transversely across the interior.
5. The aggregate volume of these dividers and the ends is 5.4 cubic inches.
6. The slack in the accused packages would permit the addition of one more mint in each of the three compartments of the box, but this is a normal amount of slack, and it exists in the three compartments of the A. & P. Tea Company's 'Warwick' package of chocolate covered thin mints which the Government sought to contrast favorably over claimant's package.
7. Having in mind that the accused container is rectangular and that the mints are approximately circular, 83% of the practical volume of the package is filled with mints.
8. If the accused package were stripped of its dividers and ends, there would be room for six more mints.
9. Only about 25% of those interviewed by a market research concern used by the Government were motivated in their choice of packages by size rather than price.
10. A survey of purchasers of various packages of chocolate covered mints, including the A. & P. Tea Company's 'Warwick' package, which uses single-thickness cardboard dividers, showed that the public grossly overestimated the number of mints in all of the packages.
12. It was not shown how many other purchasers of claimant's package were interviewed by the Food and Drug Administration nor was there any evidence that the reactions of ...