Coffee-Rich, Inc. v. Commissioner of Public Health

• Decision Date: 02 February 1965
• Docket Number: INC,COFFEE-RIC
• Citation: 348 Mass. 414,204 N.E.2d 281
• Parties: v. COMMISSIONER OF PUBLIC HEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 281

204 N.E.2d 281

348 Mass. 414

COFFEE-RICH, INC. v. COMMISSIONER OF PUBLIC HEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1964.

Decided Feb. 2, 1965.

Francis J. Larkin, Milford and Elliott H. Levitas, Atlanta, Ga. (Edward J. McCormack, Jr., Boston, and Ellis Arnall, Atlanta, Ga., with them), for plaintiff.

David Berman, Legal Asst. Atty. Gen. (David Lee Turner, Asst. Atty. Gen., and Benjamin Gargill, Asst. Atty Gen., with him), for defendants.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ. SPIEGEL, Justice.

This is a bill in equity for a declaratory decree regarding the applicability of G.L. c. 94, § 187 (as amended through St.1948, c. 598, § 2), and § 191, to Coffee-Rich, a liquid vegetable product manufactured and sold by the plaintiff; and, inter alia, to enjoin the defendants from enforcing these statutory provisions against the plaintiff. The case was presented upon a statement of agreed facts plus certain exhibits to the single justice, who reserved and reported it 'without decision for the determination of the full court.'

We herewith summarize the pertinent facts. At its principal office and plant in New York, the plaintiff manufactures Coffee-Rich, 'a pasteurized, homogenized blend of water, vegetable fats, corn syrup solids, sodium caseinate, sodium citrate, carrageenin, sorbitan monostearate, polysorbate 60 and * * * beta carotene.' Coffee-Rich contains no animal fat, milk, milk fat or any other component of cream or milk, and is completely safe for consumption by humans. It is 'designed to serve many of the same uses as cream.' 'Beta carotene contributes the off-white or tannish color of 'Coffee-Rich' to give it a color which, in the judgment of its inventors, is more appetizing than the stark white color it would have otherwise.' So colored, Coffee-Rich looks like cream. Although it has a distinct flavor when tasted alone, when mixed with coffee it cannot ordinarily be distinguished from cream or milk which are so mixed. On the other hand, Coffee-Rich is unlike cream in certain respects. It resists curdling, and under normal refrigeration it 'is designed to remain sweet, and unsoured for about three weeks.' It contains forty-four calories per ounce, whereas twenty per cent butterfat cream contains fifty-five calories per ounce. When mixed with hot coffee, it does not 'feather off' ¹ or 'oil off' ² as cream sometimes does.

Coffee-Rich is sold as a frozen food product in Massachusetts, and is 'displayed in and purveyed only from the 'Frozen Food' sections of * * * various retail outlets. * * * Cream, half and half or milk are not customarily sold' in this manner. Retail containers of Coffee-Rich are of the same size and shape as those in which orange juice, lemonade and grape juice are sold. The plaintiff has spent 'large sums of money' to advertise and promote Coffee-Rich in Massachusetts and other States. 'Advertisements and other sales aids utilized by * * * [the plaintiff] inform and educate the potential consumer as to the nature of the product and enable the consumer who reads the advertising materials, sales aids and the label of the container to differentiate between 'Coffee-Rich' and dairy products.'

A poster which appears on the frozen food counters where Coffee-Rich is found plainly describes Coffee-Rich as a 'frozen, nondairy' product. We note that the Coffee-Rich container is made of waxed cardboard and that, when properly sealed, it is opened by bending back two joined folds at the top so that a spout is formed. The container closely resembles those in which cream or milk is commonly sold. ³ On its face conspicuously appear, inter alia, the brand name, 'COFFEE RICH'; the words, 'A VEGETABLE PRODUCT CONTAINS NO MILK OR MILK FAT'; and, directly thereunder, the words, 'TO WHITEN AND ENRICH COFFEE.' To the right of these words appears a simple drawing of a small pitcher pouring a liquid into a cup. On the side of the container the ingredients are accurately listed. The suggested retail price of one pint of this product in Massachusetts is twenty-nine cents. During 1963 the average retail price of one pint of ungraded cream ranged between forty-three and forty-five cents.

On January 22, 1964, Robert E. Rich, president of Coffee-Rich, Inc., informed the Director of the Division of Food and Drugs of the temporary withdrawal 'under protest' of Coffee-Rich from the 'institutional maket in Massachusetts.' However, Rich indicated an intention to continue the marketing of Coffee-Rich for retail sale in this State. In response, the director gave notice on February 3, 1964, of his intention to 'apply Section 187, C. 94 of the General Laws to any and all sales of 'Coffee-Rich' in Massachusetts, including * * * retail sales,' and to 'take * * * steps * * * to prevent such sales.' He warned that he would 'exercise all the powers afforded * * * [him] by * * * law * * * against * * * [the] Company directly, its brokers, agent, employees, distributors, customers, retail outlets and the like.'

I. General Laws c. 94, § 187, as amended through St.1948, c. 598, § 2, ⁴ deems food 'misbranded' if it is 'in imitation or semblance of any other food' unless, in certain cases, it is labeled as such an imitation. But the section does not permit the imitation, even with such labeling, 'of any food for which a standard has been established by law, other than as specifically provided herein.' The words 'specifically provided herein' refer to all of c. 94, rather than merely to § 187, since that section contains no provision allowing the imitation of a food for which there is a statutory standard. Aeration Processes, Inc. v. Commissioner of Public Health, 346 Mass. 546, 547, 194 N.E.2d 838, 839. '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, as amended through St.1955, c. 757, § 2. ⁵ Chapter 94 contains no provision that permits the imitation of cream by combining nonmilk constituents.' ⁶ Id. at 547-548, 194 N.E.2d at 839-840. Thus, if Coffee-Rich is 'in imitation or semblance' 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.' Id. at 548, 194 N.E.2d at 840.

In Aeration we said that § 187 'precludes consideration of the veracity or effect of food product labeling in determining whether the product is an imitation.' Id. at 551, 194 N.E.2d at 842. We held that 'Instant-blend is an imitation within § 187 because (1) it resembles cream but does not conform to the statutory standards therefor, (2) apart from information supplied by labeling, there is a likelihood that an average consumer, aware of Instantblend's intended use, will confuse it with cream, and (3) there is no showing that Instantblend and cream are so differentiated in the mind of the average consumer interested in the distinction that, by making reasonable effort, he would discover with which product he is confronted. That many attributes of Instantblend differentiate it from cream does not take it out of the statutory category of an imitation. The significant properties are those which, being apparent, may cause it to be mistaken, or accepted, for cream.' Id. at 553-554, 194 N.E.2d at 843.

We think that Coffee-Rich unmistakably falls within the proscription of § 187, as did Instantblend in the Aeration case, as 'in imitation or semblance' of cream. Although it is not cream, it is designed to be used in place of cream. It looks like cream, and, when used in coffee, it tastes like cream. Our holding in Aeration, quoted above, applies in all respects to Coffee-Rich.

We are aware of the usual connotations of the word 'imitation' which are elaborately expounded by the plaintiff and which might have persuaded courts in other jurisdictions to hold Coffee-Rich or products like it as outside the statutory meanings of the word. See Coffee-Rich, Inc. v. Kansas State Bd. of Health, 192 Kan. 431, 437-438, 388 P.2d 582; Dairy Queen of Wis. Inc. v. McDowell, 260 Wis. 471, 476-477, 51 N.W.2d 34, 52 N.W.2d 791. But see, United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, D.C., 114 F.Supp. 430, 432-433. However, our statute speaks not simply of 'imitation,' but of 'imitation or semblance' (emphasis supplied). We are thus concerned, as we were in Aeration, with actual or apparent resemblance or similarity. See Webster's Third New Intl. Dictionary at p. 2062. Section 187 must be construed in this light. To the extent that Carey, as Commr. of Agriculture & Mkts. of N. Y. v. Instantwhip Schenectady, Inc., 14 A.D.2d 467, 468, 217 N.Y.S.2d 253, defines 'imitation or semblance' differently, we are disinclined to follow it in view of our holding in Aeration.

II. However, our conclusion that Coffee-Rich is 'misbranded' because it is 'in imitation or semblance' of cream does not end the matter. In Aeration we expressly left open the question whether prohibition of 'the sale of an admittedly nutritious product * * * may be imposed under the State Constitution notwithstanding a showing that substantial confusion could not result because the product * * * [is] distinctively labeled. * * * The evidence * * * [in that case demonstrated] only that Instantblend * * * [was] distributed for use at public or employer maintained eating places. The labeling on the bulk package is, of course, inconsequential in respect of such use. The evidence * * * [showed] that as * * * [thus] distributed there * * * [was] a substantial risk that Instantblend * * * [would] be confused with cream. ⁷ The supplying of...