accused package was not damaged in the end-to-end test, even after the package itself reached the failure-point in its resistance to the machine compression.
24. The hollow ends of the accused container have the functional purpose of absorbing the shock, holding the mints in a set solid position to prevent breakage. The type of divider used in the accused package, being anchored or locked to the bottom of the box, acts as a protective buttress. These hollow ends and dividers serve a functional and utilitarian purpose by affording a greater degree of crush resistance and shock protection than would single-thickness cardboard dividers and ends. The double surface of the walls of the dividers provides a better cushion for the mints, and the double thickness of the bottom helps to prevent melting from the heat which is employed in the machine-wrapping process. The accused package is better able to deliver the merchandise to the consumer in good condition than is one with single-wall dividers. The accused container can be more economically produced, using a straight line gluing machine of the fastest type available, and producing boxes at the rate of 100,000 a day.
25. Other manufacturers using single-thickness dividers in packaging chocolate covered thin mints also experienced breakage, and received complaints, even where the boxes contained only eight ounces of mints.
26. Utilizing a container the same size as that here accused, packing mints flat rather than on edge, only four layers of seven mints each will fit therein if packed to afford reasonable safety in shipment, and the aggregate of 28 mints thus packed would total only 9 1/2 ounces, as compared with the 10 ounces of weight of the 30 mints which claimant packs in the accused package.
27. The Government's witnesses considered filled a box the same size as the accused container when it contained four layers of seven mints each, despite the fact that it actually contained two less pieces of candy than were packed in the claimant's accused container and one-half ounce less in weight.
28. Packages using single-thickness dividers and ends cannot be manufactured with the speed and economy of the accused package, nor have they proven as satisfactory in use. The available alternative means of packaging claimant's chocolate covered thin mints are not less deceptive than those actually employed in the accused package.
29. The efficacy of claimant's accused package both from the standpoint of protecting the contents and from the standpoint of economy of manufacture, outweighs its alleged deceptive quality.
Conclusions of Law
1. Claimant's accused package is not misbranded or misleading within the meaning of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. 301 et seq., and is not in violation thereof.
2. If applied to bar the use of the accused package, 403(d) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. 343(d), is unconstitutionally vague, indefinite and uncertain, and contravenes the due process clause of the Fifth Amendment of the Constitution of the United States. United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516; Penobscot Poultry Co. v. United States, 1 Cir., 1957, 244 F.2d 94.
3. Claimant is entitled to have restored to it the goods which were seized by the United States Marshal in this proceeding.
4. The libel filed in this proceeding should be dismissed.
An order may be presented in conformity with the views hereinabove expressed.
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