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UNITED STATES v. 174 CASES, MORE OR LESS, ETC.

No. 13298.

287 F.2d 246 (1961)

UNITED STATES of America, Appellant, v. 174 CASES, MORE OR LESS, Each Containing 24 10-Ounce Packages of an Article Labeled in Part: "DELSON THIN MINTS CHOCOLATE COVERED * * * DELSON CANDY CO. * * * NEW YORK, N. Y."

United States Court of Appeals Third Circuit.

Decided February 28, 1961.

Rehearing Denied March 22, 1961.

Attorney(s) appearing for the Case

William E. Sellinger, Asst. U. S. Atty., Newark, N. J., Chester A. Weidenburner, U. S. Atty., Newark, N. J., William J. Risteau, Attorney, Department of Health, Education, and Welfare, Washington, D. C., on the brief, for appellant.

Richard P. Brown, Jr., Philadelphia, Pa., J. Wesley Oler, Philadelphia, Pa., Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel, for appellee, Delson Candy Co.

Before BIGGS, Chief Judge, and GOODRICH and FORMAN, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal by the United States from an order of the United States District Court for the District of New Jersey dismissing a libel of information against a number of cases of chocolate covered thin mints manufactured and shipped by the appellee-claimant, Delson Candy Company, in the spring of 1958.

Under Section 403(d) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 343(d), food must be held to be misbranded "if its...

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