(dissenting) — The difficulty with the resolution of the issues in this case by the majority opinion is that the basis for the trial court’s action was its belief as stated in finding of fact No. 9 that
*732in this part of the country, the word “shake” is a colloquialism for “milk shake”, a widely recognized dairy product. General Foods in using the word “shake” on the label of Thick and Frosty is capitalizing on the widespread use of the word “shake” as synonymous with “milk shake” so as to confuse the general public.
An examination of the findings of fact, conclusions of law and the court’s oral opinion leads to the unmistakable belief that this was the basis for the trial court concluding that Thick & Frosty violated the Washington filled dairy products act and the Uniform Washington Food, Drug, and Cosmetic Act as a misbranded product.
The trial court is not supported on this theory by this court for two different reasons. The state alleged under the filled milk act that Thick & Frosty was in imitation or semblance of “ice cream or ice milk”. The state did not allege the product was in imitation of a milk shake. On this ground alone, the trial court’s initial reasoning was in error. Additionally, the record did not support the trial court’s conclusion that the word “shake” is a colloquialism for “milk shake”.
Inasmuch as the trial court cannot be supported on its sole reason for concluding Thick & Frosty violated the filled milk act, I believe this court should either reverse the embargo or, at a minimum, remand the case for further testimony and more specific findings of fact on the theory espoused by the majority.
To hold as we now do, places Washington alone, out of 50 states in the United States, in embargoing Thick & Frosty as violating a filled milk act. If the majority of this court believes we should adhere to this position, it should be done only after a trial on the specific issues framed by the majority, supported by findings of fact made with this test in mind.
Illustrative of the difficulty in deciding this case on the majority’s theory, on this record, is the language contained in finding of fact No. 7 which the majority fails to discuss. As I understand the majority opinion, it establishes as the *733test for determining whether a product is in imitation or semblance of ice cream or ice milk, the appearance, taste, texture, consistency and performance of a product under certain conditions. The majority states:
We find that these elements for comparison suggested by the appellant afford satisfactory bases for assessing the likelihood of consumer fraud since they represent the possibilities of initial deception at the point of purchase as well as continuing confusion thereafter.
The absence of deception and confusion would seem to be conclusively answered in the body of the trial court’s finding of fact No. 7 where the trial court found:
That Thick and Frosty is a manufactured product, not a natural one, and is unlike any other product. It is designed to be mixed and consumed in the home and is not designed to be consumed in the form in which it is sold. It is consistently crystalline in structure, more so than ice milk, or in some cases ice cream, as can be seen by visual observation. When consumed it tends to coat the inside of the mouth. It blends more easily with milk than ice cream or ice milk at like temperatures. It is more dense and heavier than most ice creams or ice milk. It has a more concentrated flavor as it comes from the package than ice cream or ice milk.
This finding, on the majority’s theory, would seem to compel a holding in favor of Thick & Frosty.
The trial court had the opportunity to see and taste the product in its natural state. The presence of some testimony in the record at variance with its findings would therefore not be determinative.
Completely aside from the question of whether the record supports the majority’s theory of what test is to be applied to determine if a product is in imitation or semblance of a specified dairy product, I believe the wrong test is applied by the majority. The majority concedes the only constitutional justification for the filled milk act is as a consumer protection measure. This was established in Rees-man v. State, 74 Wn.2d 646, 651, 445 P.2d 1004 (1968). Reality dictates that the consumer buys this particular *734product in a container as shown by photographs in the majority opinion. The consumer does not open the package and make a milk shake with the concentrate at the point of purchase in the store.
In Reesman, the trial court specifically found the product to be “in semblance of milk”. We there emphasized, at page 653, that the manufacturer of the product could avoid the impact of the act “by not making and marketing their products so as to be in imitation or semblance of a dairy product.” A separate concurring opinion emphasized the distributors of “Farmer’s Daughter” were properly enjoined because the product might tend to mislead and deceive the consumers into believing they were purchasing milk and stressed that, under the circumstances in the case, due to the marketing techniques, “the ‘semblance’ can well become deceptive.”
There is no testimony in this case that any consumer confusion exists in the purchase or marketing of Thick & Frosty. On the contrary, the only testimony regarding the issue of whether a purchaser would be confused when buying this product unopened in the market is from one of the state’s witnesses. The following was asked on cross-examination of this witness:
Q. In the package and in the carton as they appear in the market, one could never be confused that that is ice cream, could they? A. No, I wouldn’t look at it and say that you would believe it is ice cream in the carton as it is marketed.
Nowhere on the wrapper of Thick & Frosty is it indicated the product is ice cream or ice milk. Although it is indicated it can be used when milk is added to make five shakes, the word “concentrate” is used to describe the product. To assume retail consumers are not aware of the plain meaning of the wrapper of a nationally advertised product and need the protection of the police power of the state when no deception or fraud is shown, strains my credulity. On a similar issue, it was observed “it is incredible that as of this date shoppers do not know what is meant *735by ‘condensed skimmed milk’.” Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 542, 132 N.E.2d 829 (1956). For this additional reason I would reverse the judgment of the trial court establishing the embargo and establish a different test than the majority has applied on the issue of whether consumer confusion, in fact, exists.
The majority does not deal with the issue of whether Thick & Frosty is misbranded or mislabeled pursuant to the Uniform Washington Food, Drug, and Cosmetic Act. It is if (1) its label is false or misleading in any particular, or (2) if it is an imitation of another food. RCW 69.04.250. RCW 69.04.250(3) requires imitation, not semblance, and there is no finding or testimony in the record that the product is in imitation of any dairy product. A determination in finding of fact No. 10 that “In the frozen state Thick and Frosty looks like ice cream or ice milk” states no more than that there is a physical semblance and does not support a violation of this section of the statute. Baltimore Butterine Co. v. Talmadge, 32 F.2d 904, 909 (S.D. Ga. 1929), aff'd, 37 F.2d 1014 (5th Cir. 1930); Midget Prods., Inc. v. Jacobsen, 140 Cal. App. 2d 517, 295 P.2d 542 (1956); Aeration Processes, Inc. v. Jacobsen, 184 Cal. App. 2d 836, 8 Cal. Rptr. 85 (1960); Coffee-Rich, Inc. v. State Bd. of Health, 192 Kan. 431, 388 P.2d 582 (1964). There is also no supportable finding of fact that the labeling of Thick & Frosty is misleading pursuant to RCW 69.04.250 (1).
In finding of fact No. 9, which we have previously quoted, the court does not specifically find “milk shake” means only a “shake” made with ice cream or ice milk and there is no substantial testimony in the record to compel such a finding. There is, as well, no testimony in the record to support this finding.
The court may not take judicial notice of the statements in finding of fact No. 9. Facts of which judicial notice may be taken must be capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and verifiable certainty. Judicial notice may not be taken of a custom or usage, local in nature, without *736the proof of its existence and application. State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 779, 380 P.2d 735 (1963); Hoppe v. State, 78 Wn.2d 164, 170, 469 P.2d 909 (1970).
I therefore dissent for the following reasons: (1) We are applying a different test than that applied by the trial court to determine a violation of the filled milk act and to use its findings and conclusions, which are oriented to an entirely different issue, is unwise and improper. On this ground alone the case should, at a minimum, be remanded for further testimony and entry of supplemental findings of fact and conclusions of law. (2) The trial court’s finding of fact No. 7 compels a conclusion different from the majority if their test is to be applied. (3) The majority uses the wrong test to determine “imitation or semblance”. (4) The opinion fails to dispose of the issues concerning the Uniform Washington Food, Drug, and Cosmetic Act.
Hamilton and Stafford, JJ., and Lawless, J. Pro Tern., concur with Utter, J.
Petition for rehearing denied November 29, 1973.