Carolene Products Co. v. McLaughlin

• Decision Date: 10 December 1936
• Docket Number: Gen. No. 23737.
• Citation: 365 Ill. 62,5 N.E.2d 447
• Parties: CAROLENE PRODUCTS CO. v. McLAUGHLIN, Director of Agriculture.
• Court: Illinois Supreme Court

365 Ill. 62

5 N.E.2d 447

CAROLENE PRODUCTS CO.

v.McLAUGHLIN, Director of Agriculture.

Gen. No. 23737.

Supreme Court of Illinois.

Dec. 10, 1936.

Suit by the Carolene Products Company against Walter W. McLaughlin, Director of Agriculture. From an adverse decree, defendant appeals.

Affirmed.Appeal from Circuit Court, Sangamon County; Lawrence E. Stone, judge.

Otto Kerner, Atty. Gen., Truman A. Snell, of Springfield, and Louis Salinger of Chicago (W. J. Emerson, of Oregon, Ill., of counsel), for appellant.

George N. Murdock, of Chicago, for appellee.

WILSON, Justice.

The Carolene Products Company filed a complaint in the circuit court of Sangamon county to restrain Walter W. McLaughlin, director of agriculture, from enforcing against it the provisions of a statute known as the Filled Milk Act, filed July 19, 1935, and in force 90 days thereafter. (Laws of 1935 p. 886, Smith-Hurd Stat.1935, c. 56 1/2, §§ 19c-19e, Ill.Rev.Stat.1935, c. 56b, pars. 19(2)-19(4) p. 1682. A temporary injunction was issued. The defendant answered the complaint. Evidence was heard and a decree was entered finding the act unconstitutional and granting a permanent injunction. The defendant prosecutes this appeal.

A similar statute known as the Filled Milk Law (Smith-Hurd Ill.Stats. c. 56 1/2 § 19a) approved June 21, 1923, was held invalid in 1931. People v. Carolene Products Co., 345 Ill. 166, 177 N.E. 698. The General Assembly repealed that statute in 1935 and enacted the present Filled Milk Act to replace it. Section 1, so far as it is pertinent to this inquiry, defines filled milk as ‘any milk, cream or skimmed milk, whether or not condensed, evaporated, concentrated or desiccated, or any of the fluid derivatives of any of them, to which has been added any fat or oil other than milk fat.’ The second section declares that ‘filled milk,’ as defined in section 1, is an adulterated food and that its sale constitutes a fraud upon the public. Section 3 prescribes that it shall be unlawful for any person to manufacture for sale within this state, or sell or exchange or have in his possession with intent to sell or exchange, any ‘filled milk’ as defined in the act. Penalties for the violation of this statute are prescribed by section 41 of the Pure Food Law. Smith-Hurd Stat. 1935, c. 56 1/2, § 44, p. 1703, Ill.Rev.Stat.1935, c. 56b, par. 44, p. 1687.

The factual situation requires consideration. The plaintiff is a domestic corporation engaged in selling throughout this state two products, called Carolene and Milnut, manufactured by the Litchfield Creamery Company at Litchfield, Ill. Differing only in name, they are composed of evaporated skimmed milk to which is added cocoanut oil, the latter being a fat other than milk fat. The cocoanut oil added to the skim milk to replace the extracted butter fat is much less expensive than butter fat. The plaintiff's products can be, and are, sold cheaper than regular evaporated milk or condensed milk. Carolene and Milnut have the same consistency, color, taste, and odor as regular evaporated milk, and are packed in air-tight cans of the same shape and size as those used by the manufacturers of regular evaporated milk. The principal, if not the only, difference between evaporated milk and plaintiff's products is that in the latter the fat content is the fat of cocoanut oil instead of butter fat. The labels on the cans plainly state that the particular product is ‘a compound of refined nut oils and evaporated skimmed milk,’ giving the proportions of each, and that it is ‘not to be sold for evaporated milk.’ The labels state further: ‘Especially prepared for use in coffee, baking and for other culinary purposes. This product complies in all respects with the Federal Food and Drugs Act of June 30, 1906, and is neither adulterated nor misbranded under the provisions thereof.’

From the evidence it appears that cocoanut oil is a widely used food product, it being the principal ingredient of oleomargarine; that it is used in the manufacture of oleomargarine in much larger relative amounts than in Carolene and Milnut without violating any law of this state; that its digestibility is the same as butter fat; that it is one of the finest vegetable oils on the market and that it is a wholesome food product. Scientific tests consisting of nutrition experiments showed that Carolene and Milnut, consisting of evaporated skimmed milk and cocoanut oil, were healthful, wholesome foods and that nothing unhealthful or deleterious was contained in them. Similar tests conducted with a typical evaporated milk produced the same results.

Much evidence was introducted concerning the amount of a certain chemical substance known as vitamin A in the plaintiff's products and in regular evaporated milk. When milk is separated from the cream, this vitamin inheres in the cream to such an extent that it is wholly or substantially absent from skimmed milk. Vitamin A is not present in cocoanut oil. Little vitamin A is therefore present in Carolene and Milnut. These products are, however, rich in all of the water-soluble vitamins, such as B and G, and contain in an increased amount all of the valuable minerals, proteins, and carbohydrates of milk. Though plaintiff's products contain little, if any, vitamin A, many of the more common foods, such as white flour, crackers, raisins, sugar, and molasses contain no vitamin A whatsoever. In a mixed diet the mere fact that this vitamin is absent in any one food is of no special importance. Evaporated milk contains considerably more vitamin A than plaintiff's products. Medical testimony disclosed that during the first year of a child's life the vitamin A requirements are greater than at any other period of life; that as products made of skimmed milk and cocoanut oil contain no appreciable amount of vitamin A they are not proper substitutes for evaporated milk commonly prescribed for infant feeding by child specialists; that if used exclusively for long periods of time such products would cause a child to suffer harmful effects, and, in particular, that the want of a sufficient amount of vitamin A in a child's diet would render him susceptible to infection of the upper respiratory tracts.

During February, 1935, two women employed by the Evaporated Milk Association, Chicago, visited 39 retail grocery stores in that city selected by officers of the association. From the testimony of these investigators it appears that when a merchant was asked for evaporated milk the usual standard brands were offered, and if a cheapter article was requested Milnutor Carolene was exhibited. In six of the stores they saw no evidence of plaintiff's products. In 19 of the 33 remaining stores visited during a four-day period the witnesses purchased Milnut. They saw the labels on the cans, knew they were not buying regular evaporated milk and were in no way deceived.

To further establish a basis for the legislative declaration that fraud would be perpetrated by the mere sale of filled milk products, the defendant sought to introduce 24 newspaper advertisements of certain retailers who sold the plaintiff's prodcuts. Twenty of the newspapers in question were published in different parts of Illinois outside of Chicago. The advertisements covered a period ranging from approximately a few months to two years prior to the passage of the Filled Milk Act now attacked. Carolene and Milnut were advertised in these papers by retail grocers or markets as ‘milk’ and ‘evaporated milk’ and offered for sale at a lower price than regular evaporated milk. The defendant also offered to prove by an inspector of the Division of Foods and Dairies of the State of Illinois, circulars published by certain retail markets in Chicago advertising Milnut as ‘milk.’ There was no evidence that the advertising was illegal or could be used fraudulently or that any one was actually defrauded. It further appeared that the plaintiff had nothing to do with any of the advertisements. On the other hand, the plaintiff's testimony tended to show that it did not desire to have its products confused with evaporated milk, but preferred that they should be sold upon their merits as milk compounds claimed to be superior to ordinary evaporated milk, and it instructed its jobbers and dealers to this effect. The trial judge rested his refusal to admit the defendant's exhibits in evidence on the ground that they were not properly identified, and hence no proper foundation had been laid for their introduction.

On the basis of the foregoing facts, the plaintiff contends that the Filled Milk Act deprives it of its property without due process of law in two particulars: First, by taking from it the right to a judicial investigation; and, second, that it is a legislative usurpation of judicial power, denies it the equal protection of the law by unlawfully and improperly discriminating against filled milk without imposing like restrictions upon oleomargarine, and is special legislation. To sustain the statute the defendant contends that the act is a valid exercise of the police power of the state.

This court in People v. Carolene Products Co., supra, decided that the Filled Milk Act of 1923 was special legislation because it did not prohibit the sale of other products to which cocoanut oil has been added, particularly oleomargarine. In that case the facts were stipulated, it being agreed that neither evaporated skimmed milk nor cocoanut oil, nor the combination, was harmful or deleterious to health. It was further stipulated that the use of cocoanut oil in oleomargarine was not prohibited by the laws of this state. In the present case these facts were put in issue by the pleadings. The evidence tended, however, to prove the facts which were stipulated in the earlier case. The reasons set forth in the opinion holding the Filled Milk Act of 1923 void as being arbitrary and unreasonable, apply with equal force to sections 1 and 3 of the present act, which are...