Coffee-Rich, Inc. v. Kansas State Bd. of Health

• Decision Date: 25 January 1964
• Docket Number: COFFEE-RIC,INC,No. 43451,43451
• Parties: , Appellee, v. The KANSAS STATE BOARD OF HEALTH, Evan Wright, Director, Food and Drug Division of the Kansas State Board of Health, Walter E. Fraese, et al., As Members of the Kansas State Board of Health, Robert H. Riedel, M.D., As Executive Secretary of the Kansas State Board of Health and As State Health Officer of the State of Kansas, Appellants.
• Court: Kansas Supreme Court

Page 582

388 P.2d 582

192 Kan. 431

COFFEE-RICH, INC., Appellee, v. The KANSAS STATE BOARD OF HEALTH, Evan Wright, Director Food and Drug Division of the Kansas State Board of Health Walter E. Fraese, et al., As Members of the Kansas State Board of Health, Robert H. Riedel, M.D., As Executive Secretary of the Kansas State Board of Health and As State Health Officer of the State of Kansas, Appellants.

No. 43451.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

1. The purpose of G.S.1961 Supp. 65-665(c), providing that a food shall be deemed to be misbranded if it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word, imitation, and, immediately thereafter, the name of the food imitated, is to protect the consuming public from fraud and deception and to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality.

2. When the legislature enacted G.S.1961 Supp. 65-665(c), providing that a food product shall be deemed 'misbranded' if it is an 'imitation' of another food, it did not define the word 'imitation,' but left it to the understanding of ordinary English speech.

3. The record in an action to enjoin public officials from enforcing G.S.1961 Supp. 65-665(c) by embargoing and condemning a quantity of Coffee-Rich, a manufactured food product, on the ground that it was suspected of being misbranded because the containers in which it was sold were not labeled 'imitation cream,' or 'imitation half-and-half,' is examined, and, as more fully stated in the opinion, it is held: (1) There was substantial evidence to support the district court's conclusion of fact that Coffee-Rich was not an imitation of milk, half-and-half or cream, and that it contained none of the characteristic ingredients of any dairy product; (2) under G.S.1949, 60-2921 the court is required, when requested, to make only 'conclusions of fact' and in not required to make findings of evidentiary fact, and (3) the district court did not err in permanently enjoining the appellants from detaining, embargoing, seizing or destroying Coffee-Rich, or interfering in any manner with the sale or distribution thereof, on the ground that the product was misbranded under the Kansas food, drug and cosmetic act.

John W. Cooper, Asst. Atty. Gen., Topeka, William M. Ferguson, Atty. Gen., J. Richard Foth, O. R. Stites, Jr., and Robert L. Lewis, Asst. Attys. Gen., Topeka, with him on the briefs, for appellants.

Elliott H. Levitas, Atlanta, Ga., and Milo M. Unruh, Wichita, Ellis Arnall, Atlanta, Ga., Warren W. Shaw, Topeka, and Edward F. Arn, Richard F. Mullins, H. R. Kuhn and Louis W. Cates, Wichita, with them on the briefs, for appellee.

FATZER, Justice.

The Kansas food, drug and cosmetic act authorizes the State Board of Health or any of its authorized agents to detain or embargo and bring a libel for condemnation against any article of food which is 'misbranded' when the authorized agent finds or has reason to believe that such food is adulterated, or so misbranded as to be dangerous or fraudulent. (G.S.1961 Supp., Ch. 65, Art. 6; 65-657, 65-658, 65-660, 65-665.) The act defines 'misbranded' in G.S.1961 Supp., 65-665, and the pertinent portion reads:

'A food shall be deemed to be misbranded: * * * (c) If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word, imitation, and, immediately thereafter, the name of the food imitated.'

The appellants, the members of the State Board of Health and its duly authorized agents, acting pursuant to the act, embargoed approximately 878 quarts of Coffee-Rich and further threatened to detain or embargo additional quantities of Coffee-Rich in various places throughout the state wherever the product was offered for sale or sold. The seizure was on the ground that Coffee-Rich was suspected of being misbranded because the containers in which it was sold were not labeled as 'imitation cream,' or 'imitation half-and-half.' No claim was made that the product was misbranded in any other particular.

The plaintiff-appellee commenced this action to enjoin the appellants from enforcing the act and from embargoing or otherwise interfering with the marketing of the product on the ground that it was misbranded in violation of the act. (65-665[c].)

It is unnecessary to summarize the pleadings except to say that issues were joined and trial was by the court which made findings of fact and conclusions of law and entered judgment for the plaintiff. In view of contentions made by the appellants, we quote in full the findings of fact.

'1. Plaintiff manufactures a product known as 'Coffee-Rich.' It is offered for sale to wholesale food distributors throughout the State of Kansas. It is sold primarily as a coffee enricher and whitener.

'2. Coffee-Rich is a manufactured product, not a natural one, the result of plaintiff's research and invention.

'3. The labels on the containers in which Coffee-Rich is sold accurately set out the ingredients of the product.

'4. Coffee-Rich is not an imitation of milk, half and half or cream. It contains none of the characteristic ingredients of any dairy product.

'5. To place on the labels of Coffee-Rich the word 'imitation' followed by the words 'milk,' 'cream' or 'half and half' would mislead and deceive the purchasing public and consumers.

'6. Prior to the filing of this suit defendants had detained, or embargoed, approximately 878 quarts of Coffee-Rich and threatened further detentions, or embargoes, of additional quantities of the product throughout the State of Kansas.

'7. The detention, embargo and destruction of Coffee-Rich by defendants has damaged and would damage the business, property and good will of plaintiff. It has, and would, constitute an arbitrary, unreasonable and discriminatory action by defendants.'

The district court concluded as a matter of law that Section 65-665(c) is a valid legislative enactment, designed to protect the public, to prevent fraud and safeguard the public health; that Coffee-Rich was not misbranded under the act; that the acts of the appellants, past and present, were an unconstitutional application of a valid statute, and that a permanent injunction against all the appellants should be and the same was accordingly granted.

The evidence is summarized: Coffee-Rich is a manufactured product and not a natural product. It is a wholesome food, and is generally sold in quart containers which truthfully list the ingredients of the product. Immediately below the trade name on the containers appears the words 'CONTAINS NO MILK OR MILK FAT,' and immediately below those words are the words 'A VEGETABLE PRODUCT.' The product is basically a vegetable fat emulsion; it is artificially colored and its sole ingredients are vegetable fats, corn syrup solids, sodium caseinate, sodium citrate, carrogeenin, sorbitan, monastearate, polysorbate 60, pure beta carotene and water. Coffee-Rich contains no cream, no half-and-half, no milk, and no dairy products. The product was designed primarily to enrich the taste and lighten the color of coffee, although it is also suitable for use on fruits, breakfast cereals, and desserts, and in soups and sauces.

As a vegetable fat product, Coffee-Rich is an original development, and it was never plaintiff's intention to imitate cream, or half-and-half, or any other dairy product. Rather, it intended to create and produce a product which would not have the inherent defects of cows' cream and other dairy products when used for purposes for which Coffee-Rich was designed. Cream and half-and-half are natural products. Coffee-Rich is distributed in a frozen state whereas dairy products are distributed in a liquid state. It does not taste like cows' cream, neither does it have the same aroma nor the same texture as cows' cream. The color of Coffee-Rich is yellowish white or possibly a tannish color and it is constant and never changes, whereas the color of cream varies at times during the year depending upon the diet of the cows producing the cream. It is a product uniform in flavor whereas cows' cream varies in flavor. It can be stored for longer periods than cream; it has less bacterial organisms than cream, and it will remain sweet and fresh longer than cream. Coffee-Rich contains no cholesterol, whereas cows' cream contains cholesterol, and it has a lower caloric value or content than cream. Coffee-Rich is resistant to 'oiling off' and 'feathering,' whereas cream exhibits those tendencies.

The appellants first argue that Coffee-Rich is an imitation of cream, or half-and-half, and therefore subject to the labeling requirements of G.S.1961 Supp. 65-665(c). The district court found, as a matter of fact, that it was not. Whether one product is an imitation of another is a question of fact. Cases relied upon by appellants uniformly hold this to be the law. 'Imitation is initially a question of fact * * *.' (United States v. 651 Cases, etc., 114 F.Supp. 430, 431.) The word 'imitation' as used in the statute (65-665[c]) is not defined. Construing an identical federal statute (21 U.S.C.A. § 343(c)) the Supreme Court of the United States, in 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 599, 71 S.Ct. 515, 519, 95 L.Ed. 566, speaking through Mr. Justice Frankfurter, said:

'In that section Congress did not give esoteric meaning to 'imitation.' It left it to the understanding of ordinary English speech.'

The parties are agreed that resort should be made to ordinary English definitions of the word 'imitation' in making the initial investigation into the basic legal question presented. Various definitions of the word 'imitation' may be found in a variety of currently accepted encyclopedias of modern speech and language, and Webster's New...