## Facts

- The United States brought an in rem seizure action seeking condemnation of 432 cartons of candy lollipops under the Federal Food, Drug, and Cosmetic Act (FDCA).
- The cartons’ exterior labeled the product as “Candy” and listed ingredients as sugar, corn syrup, citric acid, and natural and artificial flavors.
- Inside the carton, prominent phrases stated “Liquor Flavored Lollypops” and “Take Your Pick of a Liquor Stick.”
- Individual lollipops and their wrappers were labeled with distilled spirits names, including “Scotch,” “Bourbon,” and “Gin.”
- It was undisputed that the lollipops contained no liquor or alcohol; any flavoring came from natural and artificial flavors.
- The government moved for judgment on the pleadings; because materials outside the pleadings were presented and considered, the court treated the motion as one for summary judgment.

## Issues

1. Whether labeling that describes candy as “Liquor Flavored Lollypops,” invites buyers to choose a “Liquor Stick,” and uses spirit names on wrappers is “false or misleading” under 21 U.S.C. § 343(a) when the product contains no liquor.
2. Whether accurate exterior labeling and an accurate ingredient list prevent a finding of misbranding when other prominent labeling conveys a misleading impression to ordinary purchasers.

## Decision

- The court granted summary judgment for the United States.
- The court held the lollipops were misbranded under 21 U.S.C. § 343(a) because the labeling conveyed the misleading impression that the candy was flavored with liquor.
- The court ordered condemnation of the seized cartons under 21 U.S.C. § 334(a).
- The court found no genuine dispute of material fact because the labeling and the absence of liquor in the product were undisputed.

## Legal Principles

- A food is misbranded under 21 U.S.C. § 343(a) if its labeling is “false or misleading in any particular,” assessed from the standpoint of the ordinary purchaser.
- Labeling is evaluated in context, but accurate statements (including ingredient disclosures) do not cure other prominent representations that create a misleading overall impression.
- Where the material facts about the product and its labeling are undisputed, whether the labeling is misleading may be resolved as a matter of law on summary judgment.
- Under 21 U.S.C. § 334(a), misbranded food introduced into interstate commerce is subject to seizure and condemnation.

## Conclusion

The court condemned the lollipops as misbranded because prominent “liquor”-themed labeling and spirit names on wrappers misled ordinary consumers into believing the candy was liquor-flavored, even though the ingredient list was accurate and the product contained no alcohol.


United States v. Article of Food Consisting of 432 Cartons, More or Less, Each Containing 6 Individually Wrapped Candy Lollipops of Various Flavors, 292 F. Supp. 839 (S.D.N.Y. 1968)