Aeration Processes, Inc. v. Commissioner of Public Health

• Decision Date: 06 December 1963
• Citation: 346 Mass. 546,194 N.E.2d 838
• Parties: AERATION PROCESSES, INC., et al. v. COMMISSIONER OF PUBLIC HEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 838

194 N.E.2d 838

346 Mass. 546

AERATION PROCESSES, INC., et al. v. COMMISSIONER OF PUBLIC HEALTH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 1963.

Decided Dec. 6, 1963.

David L. Turner, Asst. Atty. Gen., for defendants.

John N. Kelly, Boston (Howard F. Ryan, Beverly, with him) for plaintiffs.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

This bill of complaint seeks a declaration as to the applicability of G.L. c. 94, § 187, as amended through St.1948, c. 598, § 2, ¹ to Instantblend, a vegetable product resembling cream and served and used with coffee at public, or employer maintained, eating places.

The plaintiffs are Aeration Processes, Inc. (Aeration), an Ohio corporation which owns the formula of Instantblend, and Instantwhip-Boston, Inc., a Massachusetts corporation, which as a licensee of Aeration manufactures and sells Instantblend within the Commonwealth. Aeration 'purchase[s] and * * * [has] prepared certain dry mixtures that the Instant Whip Companies use in manufacturing their products.' The defendants are the Commissioner of Public Health, the Director of the Division of Food and Drugs, and the Attorney General. No one has contended that any defendant is not a proper or necessary party.

Section 187 of c. 94 ² declares food misbranded if 'in imitation or semblance of any other food' unless, in certain cases, labeled as such an imitation. But it does not permit the imitation, even with labeling, 'of any food for which a standard has been established by law, other than as specifically provided herein.' The words 'specifically provided herein' must refer to all of c. 94, rather than merely to § 187, as that section makes no provision allowing the imitation of a food for which there is a statutory standard. There are in c. 94 some sections that allow the imitation of foods for which standards are set by statute provided labeling requirements more specific than those of § 187 are met. See §§ 49, 54, oleomargarine; § 50, 'imitation cheese'; § 1, definitions of butter and cheese.

Statutory standards for cream and ungraded cream are established by G.L. c. 94, § 12, ³ as amended through St.1955, c. 757, § 2. Chapter 94 contains no provision that permits the imitation of cream by combining nonmilk constituents. Section 17A prohibits the manufacture, sale or possession for sale, of milk, cream or skimmed milk to which any fat or oil other than milk fat has been added 'so that the resulting product is in imitation or semblance of milk, cream or skimmed milk * * *.' The addition of milk fat to such products is, however, not prohibited by § 17A provided the product is not sold as pure milk. ⁴

Hence, if Instantblend is an 'imitation' of cream it is misbranded however labeled or sold and is subject to an embargo under c. 94, § 189A; also, whoever delivers or offers to deliver such a misbranded product is subject to the criminal penalty provided in c. 94, § 191.

The final decree, from which the defendants have appealed, ruled inter alia that G.L. c. 94, § 187, is constitutional; Instantblend is not an imitation milk product; the application of § 187 to Instantblend would be unconstitutional. It enjoined the defendants from prosecuting anyone for distributing, marketing or selling Instantblend or interfering with its distribution, use or sale.

There are findings and rulings; the evidence is reported.

The testimony of a vice-president of Aeration shows that Aeration, in the course of licensing the sale of two other nondairy products--Instantwhip and Instantwhip Topping[346 Mass. 549] --noticed the sale by competitors of certain 'vegetable fat coloring agents,' and thereupon, in order to maintain its share of the market, developed Instantblend. It was designed as a product that 'would color coffee so it would give a commodity a pleasing appetizing appearance.'

Instantblend is a pasteurized blend of water, hydrogenated vegetable oils, dextrose, sucrose, enzyme modified casein, mono and di glycerides, protein stabilizers, salt, and artificial color and flavor. The vice-president's testimony also shows that he with two others associated with Aeration did the work in developing Instantblend and that in his view the color of Instantblend is very close to that of cream; it pours like cream and in coffee the average person cannot tell from the taste whether it is cream.

Other testimony shows that, closely observed, Instantblend is somewhat different from cream. In color it is white as against the yellow tinge of cream, and it differs somewhat in taste when not in coffee, being sweeter and having perhaps a chalky taste. Its viscosity is less than that of cream, and more like that of milk.

Instantblend has certain advantages; it does not feather (or separate so that its fat content rises) when added to coffee at a high temperature as cream sometimes does; it does not spoil as quickly as cream. In coffee dispensing machines it does not clog the separate chute through which it flows, in contrast to cream, which tends to do so because of its calcium content. Some attributes, such as the absence of butter fat, may be thought by some consumers to be an advantage.

The Director of the Division of Food and Drugs testified that Instantblend is 'nutritional,' though of different nutritional value from cream, and the defendants, by counsel, in effect so conceded.

The evidence shows that Instantblend is sold, sometimes through distributors, for use in restaurants or at lunch counters or in 'vending machines * * * placed in various locations' in factories. The defendants do not contend that the label on the bulk package in which Instantblend is sold does not fully disclose its composition; the judge, having a package before him as an exhibit, found that it is truthfully labeled with a full disclosure of its ingredients.

The plaintiff Instantwhip-Boston, Inc., with the sale of Instantblend, provides signs for posting in the retailers' premises to be put on the dispenser. These signs in varying sizes of type read, 'Especially for You! For a Delicious Coffee We Use Instantblend A Non-Dairy Product.' ⁵

There was evidence that when an inspector from the Division of Food and Drugs, at a lunch counter, ordered a cup of coffee with cream on the side he was served black coffee and a one ounce glass container of a white liquid (later identified by the manager as Instantblend) taken from a dispensing device or 'creamer.' He saw no sign on the creamer and was sure that there was none.

The evidence then supports the judge's findings that Instantblend 'has some distinctive appearance and texture,' that the plaintiffs do not intend to offer it as milk or cream, that it is truthfully labeled and is a nutritious, distinctive food product of Aeration's own research and invention. The judge's conclusion, however, that although Instantblend 'may have some appearance of cream,' it is not a substitute, nor is it an imitation under G.L. c. 94, § 187, is not justified. The plaintiffs, in effect, themselves assert that Instantblend is a substitute for cream; the reasons for our ruling that this intended substitute is an imitation of cream are next stated.

1. Instantblend is an imitation of cream within the meaning of G.L. c. 94, § 187.

The statute is designed to avoid confusion of other products with defined and familiar foods. Section 187, read with § 12, reflects the policy that the public shall not be exposed to the risk of mistaking for cream, milk or skimmed milk something that is not that product as defined by the statute. See Carolene Prods. Co. v. United States, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15.

The meaning of 'imitation' is not limited to a substance inferior to the product which it resembles. There is no suggestion of such a limitation in those provisions of § 187 which define 'misbranded' to include the 'imitation' of a food. Compare the wording of paragraphs Fifth and Sixth of § 187 (food) under which inferiority may be an element. Compare also Federal Food, Drug, and Cosmetic Act, § 402(b)(4), 52 Stat. 1046-1047 (1938), 21 U.S.C. § 342(b)(4) (1958); United States v. 88 Cases, More or Less, Containing Bireley's Orange Beverage, 187 F.2d 967, 972 (3d Cir.), cert. den. 342 U.S. 861, 72 S.Ct. 88, 96 L.Ed. 648.

Intent to pass off, impose or defraud is not required as a test of an imitation. United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430, 433 (N.D.N.Y.), and cases cited. Compare G.L. c. 94, § 187 (misbranding of food), 'Seventh, if the package containing it or its label bears any statement, design or device regarding the ingredients or the substances contained therein which is false or misleading in any particular.' The Chil-Zert case, supra, holds that a product resembling ice cream made with soy fat and soy protein and labeled 'not an ice cream' is an imitation and is misbranded under § 403 of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1047-1048 (1938), 21 U.S.C. § 343 (1958). This, because the statute itself in specifically providing the mode of labeling which will prevent the product from being characterized as misbranded precludes consideration of the truthfulness of nonstatutory labeling. Section 187 of our statute likewise has a specific labeling provision in all cases save where the food is one for which there is a statutory standard. In our opinion this provision precludes consideration of the veracity or effect of food product labeling in determining whether the product is an imitation. The word 'imitation' has the same meaning throughout paragraph First of § 187 (food). Its meaning is the same where the food imitated is one for which a standard is set by statute (and, which therefore, may not be imitated even with a label) as for a food for which there is no such statutory standard and which may be imitated if labeled as the statute requires.

The plaintiffs rely on ...