313 F2d 219 United States v. Candy Bars More or Less Labeled in Part "Sta-Trim"
313 F.2d 219
UNITED STATES of America, Libelant-Appellant,
1200 CANDY BARS, MORE OR LESS, LABELED IN PART "STA-TRIM", Defendant-Respondent, and
Sta-Trim Confections, Inc., Claimant-Appellee.
United States Court of Appeals Ninth Circuit.
January 14, 1963.
Cecil F. Poole, U. S. Atty., Robert N. Ensign, Asst. U. S. Atty., San Francisco, Cal., and Arthur A. Dickerman, Atty., Dept. of Health, Education & Welfare, Los Angeles, Cal., for appellant.
Bass & Friend, New York City, for appellee.
Before POPE, HAMLEY and BROWNING, Circuit Judges.
In this case the United States filed a libel against the above mentioned Candy Bars alleging that the candy bars were (a) adulterated and (b) misbranded in violation of the Federal Food, Drug, and Cosmetic Act. Following proceedings in the court below, the court adjudged that the candy bars were not adulterated within the meaning of the applicable statute but adjudged that the same were misbranded and ordered them condemned and destroyed for this reason. United States has appealed from that portion of the judgment of the court below which found the candy bars not adulterated. No other appeal has been taken and the decree of condemnation ordering destruction of the candy bars because misbranded has become final. Appellee asserts that appellant's appeal is moot and should be dismissed.
We are of the opinion that under the circumstances stated the matter determined against the United States is immaterial or moot, and that the motion to dismiss the Government's appeal should be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the appeal of the United States be, and the same is hereby dismissed as moot. So much of the judgment below as dealt with the issue of adulteration is vacated and set aside, and the same is and shall be without further force and effect. Duke Power Company v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 and cases cited in United States v. Munsingwear, Inc., 340 U.S. 36, 39, footnote 2, 71 S.Ct. 104, 95 L.Ed. 36. See also Benz v. Compania Naviera Hidalgo, S. A., 9 Cir., 205 F.2d 944, 947.