Commonwealth ex rel. Woodside v. Sun Ray Drug Co.
| Decision Date | 26 September 1955 |
| Citation | 383 Pa. 1,116 A.2d 833 |
| Parties | COMMONWEALTH of Pennsylvania, ex rel. Robert E. WOODSIDE, Attorney. General, v. SUN RAY DRUG COMPANY and Carlo Galletta and Richard Nasuti, Individually and Trading as Carl-Rich, Appellants. Appeal of SUN RAY DRUG COMPANY, Association of Ice Cream Manufacturers of Pennsylvania, New Jersey and Delaware, Intervening Appellee. |
| Court | Pennsylvania Supreme Court |
The Commonwealth of Pennsylvania, on the relation of the Attorney General, brought suit to enjoin defendants from selling a frozen sweetened milk product, on ground that the sale violated the Ice Cream Law. The Common Pleas Court of Dauphin County, Homer L. Kreider, J., at No. 2045 Equity Docket entered a decree adverse to the defendants, and they appealed. The Supreme Court, at No. 21, May Term, 1955 Chidsey, J., held that the Ice Cream Law does not regulate in any manner the sale of milk shakes or establish and standard for the ingredients of milk shakes, and that therefore sales of milk shakes made from frozen sweetened milk product could not be enjoined, on ground that they violated the Ice Cream Law, and that in absence of any evidence of customer confusion between frozen sweetened milk product, which resembled vanilla ice cream in appearance, and ice cream, and in absence of evidence of any sales of the product as ice cream, its possession or manufacture could not be restrained on ground that it violated the Ice Cream Law.
Decree reversed.
Samuel Handler, Compton, Handler & Berman, Harrisburg R. B. Wolf, Wolf, Block, Schorr & Solis-Cohen, Morris Wolf, Philadelphia, for appellants.
Samuel M. Jackson, Deputy Atty. Gen., for appellee.
Duane, Morris & Heckscher, Philadelphia, Samuel Schreckengaust, Harrisburg, Herbert B. Cohen, Atty. Gen., J. Grant McCabe, III, John B. Martin, Philadelphia, for intervenor-appellee, McNees, Wallace & Nurick, Harrisburg, of counsel.
Before STERN, C. J., and STEARNE, JOHES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
This is an appeal from the order of the Dauphin County Court which enjoined both defendants from selling a ‘ frozen sweetened milk product referred to in these proceedings as Malt-A-Plenty and Shake-O-Malt’ .
The action in equity was brought by the Commonwealth of Pennsylvania with the Association of Ice Cream Manufacturers of Pennsylvania, New Jersey and Delaware, Inc. as intervening plaintiff, against the Sun Ray Drug Company, a Pennsylvania corporation, and Carlo Galletta and Richard Nasuti, individually and trading under the fictitious name of Carl-Rich, to enjoin them from violating the Pennsylvania Ice Cream Law, Act of May 20, 1949, P.L. 1594, 31 P.S. § 407 et seq., in that they had in their possession with intent to sell and have sold a product alleged to be an inferior simulation of ice cream. The product is known by the generic name of ‘ ice milk’ . Ice milk is made of the same ingredients as is ice cream except that the finished product (herein called Malt-A-Plenty base) normally contains 3% to 5 1/2% butterfat by weight and does not contain any flavoring or coloring. The minimum butterfat content for ice cream as required by the Ice Cream Law is 10%.
The appellants Galletta and Nasuti manufacture the ice milk product involved in this litigation, and it is purchased by appellant Sun Ray Drug Company and other similar retailers in Pennsylvania. The chancellor found that Sun Ray Drug Company sells Malt-A-Plenty only as a dairy drink. To make the drink the Malt-A-Plenty base is combined with an equal quantity of whole milk, flavoring, and also, if the customer so desires, malted milk powder. These ingredients are mixed with a beater and served to the customer as a thick liquid drink called Malt-A-Plenty. The chancellor found that there is no difference between the taste of a Malt-A-Plenty drink so prepared and a conventional milk shake made with ice cream. A Malt-A-Plenty drink costs 24 cents, and a milk shake made with ice cream costs 30 cents.
The history and development of the Malt-A-Plenty drink was testified to by Harry B. Burt of Tulsa, Oklahoma, a past president of the National Association of Retail Ice Cream Manufacturers, who originated the drink. His testimony was undisputed. Burt has for some time been the president of a company which operates retail ice cream stores. He noticed that the sale of conventional milk shakes was falling off in his retail stores and determined that the reason was that the heavy milk fat content of milk shakes made with ice cream bloated the customer and made him feel uncomfortable. By experiment Burt discovered that if the milk fat content of the drink was decreased to the same milk fat content of whole milk, the bloating and discomfort disappeared. A formula was arrived upon which gave this desired result and the product was put on sale in Burt's stores in 1937. Burt's experience was that many customers preferred the Malt-A-Plenty drink because it was easier to digest and nonfattening. Starting in 1939 Burt began to sell generally the Malt-A-Plenty powder which is the basic constituent of ice milk. Milk drinks made from Malt-A-Plenty base became widely popular and by 1953 Burt sold enough powder to make 8,000,000 gallons of ice milk and of course many times that many million ice milk drinks. Throughout the United States there were 17,000,000 gallons of ice milk sold in 1950 and over 45,000,000 gallons sold in 1951. The drink is healthful and nutritous, and there is in this case no contention that it is noxious in any manner.
The Pennsylvania Ice Cream Law, supra, in defining ice cream, provides in Section 1: ‘ * * * The finished product shall contain not less than ten per centum (10%) of milk fat by weight * * *.’ Section 1 also defines " imitation ice cream" or " ice cream substitute" as ‘ * * * (1) any frozen sweetened product regardless of the name under which it is manufactured, sold, or offered for sale, which is made in imitation or semblance of or is manufactured in a manner similar to the process used in manufacturing but is not ice cream, custard ice cream, french ice cream, frozen custard, sherbet, ice, fruit ice, frozen ice confection or frozen sherbet confection, as defined in this act, * * *.’ The Act then requires custard ice cream, french ice cream, french custard and frozen custard to conform to the standard of ice cream as defined and in addition to contain not less than 1.4% of egg yolk solids. Sherbet is required to contain not less than 3% and not more than 5% of milk solids. Fruit ice can contain no butterfat and must contain not less than thirty-five one hundredths percent of harmless organic acid. There are no requirements for any butterfat content of ice or frozen fruit confections.
Section 3 of the Act provides that any frozen sweetened product referred to in the Act shall be deemed to be adulterated: Section 2 of the Act provides: ‘ (a) It shall be unlawful for any person * * * to sell, offer for sale, expose for sale, or have in possession with intent to sell, ice cream, * * * which is adulterated, within the meaning of this act, or to sell, offer for sale, or expose for sale, or have in possession with intent to sell, any imitation ice cream or ice cream substitute, as defined in this act.’ It is this section of the Act which appellants herein were determined by the court below to have violated.
In order to define the issue it is necessary to distinguish between the Malt-A-Plenty base and the Malt-A-Plenty drink. The base is manufactured by appellants Galletta and Nasuti in Philadelphia by adding skim milk powder, sugar and water to a mixture of Malt-A-Plenty powder and cream, and freezing the resulting compound. When delivered to retailers, such as appellant Sun Ray Drug Company, it is a solid or semisolid substance similar to ice cream in texture, consistency and appearance. The Malt-A-Plenty drink is what is commonly known as a milk shake and, as previously stated, is made by the retailer by adding to the base whole milk, flavoring, and, optionally, malted milk powder. This mixture is agitated with a beater and served as a thick liquid. The milk drink is called Malt-A-Plenty or Shake-O-Malt by appellant Sun Ray Drug Company, but is also known by various other names such as Shake-A-Mighty, Jumbo Shake, and Drink-A-Plenty.
Since the chancellor has found that appellant Sun Ray Drug Company sells Malt-A-Plenty only as a drink, our first consideration is to determine whether such sales violate the Ice Cream Law. The evidence discloses that the contents of a conventional milk shake vary with the desires of individual customers, and may include no ice cream or several dips of ice cream as specified by the customer. The chancellor found that the public expects a thick, rich soda fountain drink to be made with ice cream, and that the use of Malt-A-Plenty base in a milk shake may lead to deception of the customer.[1]The Ice Cream Law does not refer to milk shakes, ice cream milk drinks, or any liquid drinks whatever. There is in Pennsylvania no statutory definition of a milk shake or standard for its ingredients. Since the Ice Cream Law does not regulate in any manner the sale of milk shakes, it furnishes no basis for an injunction against the sale of a particular type of milk shake which is admitted to be wholesome and nutritious. Cf. Mayo v. Rice Fla.1948, 37 So.2d 705. ...
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