State v. 28 Containers of Thick & Frosty

Finley, J.

This is an appeal by the Birds Eye Division of General Foods Corporation, manufacturer of a food product advertised as Thick & Frosty, from a trial court decision affirming an embargo order placed upon 28 containers of this product by the Washington State Department of Agriculture.

The containers were embargoed on June 1, 1970, in Bel-lingham, Washington, pursuant to the provisions of RCW 15.38.040 and RCW 69.04.110. In sustaining the embargo order, the trial court found the following pertinent facts upon the basis of the testimony, exhibits, and record before the court: (1) that Thick & Frosty is a product containing a percentage of milk to which fat or oil other than milk fat has been added;1 (2) that Thick & Frosty is a frozen product and is stored at zero degrees Fahrenheit, the same as frozen dairy products such as ice cream; (3) that the labeling on the advertising material in which the Thick & Frosty plastic container is packaged attractively depicts in twc large pictures what appears to be a milk shake, accompanied by the following words and phrases appearing severa] times as indicated: “Shake” — seven times; “Makes Five 8-Oz. Shakes” — twice; “Frozen Thick Shake Concentrate”— three times; “Frosty Cold Thick Shake You Make at Home”; “Directions to Make One Shake”; “For thinner shake, add more milk”; (4) that General Foods, in using the word “shake” on the label of Thick & Frosty, is capitalizing on the widespread use of the word “shake” as synonymous with “milk shake” so as to confuse the general public; (5) that Thick & Frosty is displayed and sold from refrigerated cases the same as ice cream and ice milk products are displayed and sold; (6) that in the frozen state Thick & Frosty looks like ice cream or ice milk; (7) that General Foods has, by substituting vegetable oil in place of milk fat in Thick & Frosty, made a product which appears to be of greater value than it is. Based upon these findings of fact, the trial court concluded: (1) that Thick & Frosty is in imitation and semblance of genuine dairy products, to wit: ice cream and ice milk; (2) that Thick & Frosty is a filled dairy product as defined in the filled dairy products act (chapter 15.38 RCW) and an economically adulterated food product as defined in the Uniform Washington Food, Drug, and Cosmetic Act (chapter 69.04 RCW); (3) that as a filled dairy product Thick & Frosty is subject to the prohibitory provisions of chapter 15.38 RCW and chapter 69.04 RCW; (4) that Thick & Frosty is misbranded and mislabeled in violation of the Uniform Washington Food, Drug, and Cosmetic Act (chapter 69.04 RCW).

In response to this ruling supporting the embargo order, the appellant argues that Thick & Frosty is neither a “filled dairy product” within the meaning of RCW 15.38.010(2) nor a misbranded product under RCW 69.04.250. We disagree.

The package and container described by the trial court in which Thick & Frosty is marketed are pictured below.

The purpose of the filled dairy products act was stated by the legislature to be as follows:

Filled dairy products resemble genuine dairy products so closely that they lend themselves readily to substitution for and confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer. The manufacture, sale, exchange, purveying, transportation, possession, or offering for sale or exchange or purveyance of filled dairy products creates a condition conducive to substitution, confusion, deception, and fraud, and one which if permitted to exist tends to interfere with the orderly and fair marketing of foods essential to the well-being of the people of this state. It is hereby declared to be the of this chapter to correct and eliminate the above referred to; to protect the public from fraud and deception; to prohibit practices inimical to the general welfare; and to promote the orderly and fair marketing of essential foods.

RCW 15.38.001. In response to this declaration of purpose,

and concerning the constitutionality of the filled dairy products act, we stated the following in Reesman v. State, 74 Wn.2d 646, 651, 445 P.2d 1004 (1968):

The legislature has thus put its finger squarely upon the evil which the enactment was designed to guard against, i.e., the manufacture, distribution and sale of a substitute dairy product which, by its resemblance to the natural product, is conducive to consumer confusion and deception. This has been held to be a valid basis upon, which to rest the exercise of the state’s police power, for the prevention of deception and fraud upon the consuming public is in the public interest. Carolene Prods. Co. v. United States, 323 U.S. 18, 89 L. Ed. 15, 65 Sup. Ct. 1, 155 A.L.R. 1371 (1944); Sage Stores Co. v. Kansas ex rel. Mitchell, 323 U.S. 32, 89 L. Ed. 25, 65 Sup. Ct. 9 (1944); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 10 L. Ed. 2d 248, 83 Sup. Ct. 1210 (1963); Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23 (1939); Hathaway v. McDonald, 27 Wash. 659, 68 Pac. 376 (1902). The underlying objective, therefore, of the legislation cannot be said to be unreasonable, arbitrary, and capricious, or in violation of a constitutional mandate.

The constitutionality and soundness of the filled dairy products act, as a measure for the protection of the consuming public from confusion, deception, and fraud, is well-settled.

Before a particular product may be subjected to the in-junctive penalties of the act, a two-part statutory test for “filled dairy products” must be met.2 First, the product must contain some milk to which any oil or fat other than milk fat has been added, and second, the resulting product must be “in imitation or semblance” of any dairy product. In the instant case, the product embargoed contains 3.5 percent nonfat dry milk to which hydrogenated vegetable oil has been added, and therefore meets the first statutory requirement. The second requirement, concerning the “imitation or semblance” of a dairy product, presents the real point of controversy for this court.

In Reesman v. State, supra, we had occasion to address-this latter requirement in reviewing the application of the filled dairy products act to the distribution of “Farmer’s Daughter”, a product found to be “in semblance of milk” and therefore a filled dairy product. This particular product was described as follows:

This is a high protein drink, consisting of powdered milk from which the butter fat has been removed and to which has been added, water, vegetable oil, sodium case-inate, corn syrup solids, starch, monodiglyceride, carotene, and units of vitamins A and D. The product, when compounded, is the color of milk, has the general viscosity of milk, and to some tastes and smells like milk. It is to be distributed in a paper carton identical in shape and design to a standard half-gallon paper milk carton. A dairy and a dairymaid are pictured on the carton, around and about which is written in varying size print, “farmer’s daughter,” “Hi-Protein Drink,” “Pasteurized Homogenized,” “Delicious Nutritious,” “Contains No Animal Fat,” and “modern science has now achieved a unique, healthful liquid — as nutritious and tasty as the natural product. It is made possible by a secret formula recently discovered by one of America’s leading dairy scientists.” The ingredients are listed and Reesman’s Dairy is named as the processor and distributor.

Because of the composition and milk-like qualities of the product it comes within the scope of the Filled Dairy Products Act, RCW 15.38 . . .

Reesman v. State, supra at 647-48. The above-described product characteristics upon which we based our conclusion that “Farmer’s Daughter” qualified as a filled dairy product are strikingly similar to the characteristics of Thick & Frosty. According to the uncontroverted trial testimony of William Knutzen, Chief Food Inspector for the Washington State Department of Agriculture, Dairy and Food Division, and Dr. William Roth, Director of the Washington State Food and Drug Laboratory, Thick & Frosty looks like ice cream or ice milk in the grocery store frozen dairy compartment; further, the color is not distinguishable from ice cream. Similar to the finding in Reesman that Farmer’s Daughter had the general viscosity of milk, Frank Crews, Chief Agricultural Microbiologist for the Department of Agriculture testified that, based upon his expertise in this area, there was no difference in texture and appearance between ice milk and Thick & Frosty, and that when this latter product is ready for use, one could easily assume that it was ice cream or ice milk. And just as Farmer’s Daughter was found to taste and smell like milk to some, both Mr. Crews and Dr. Roth testified that Thick & Frosty had a flavor like ice cream or ice milk, that soft ice cream often has the strong flavor attributed at trial to Thick & Frosty, and frequently bears the mouth-coating quality of Thick & Frosty when this latter product is eaten directly from the container. Even the laboratory manager for the technical research group of the Birds Eye Division of General Foods testified at trial that Thick & Frosty resembles an all-dairy milk product. The only real differences in the characteristics of ice cream or ice milk and Thick & Frosty which can be gleaned from the trial record appear to be (1) that Thick & Frosty stays at the bottom of the glass when one adds milk to it for purposes of making a milk shake (unlike the floating quality of ice cream as a result of “overrun”), and (2) Thick & Frosty spoons easier than ice cream at colder temperatures.

With the above factors of similarity before us, we turn now to an examination of the trial court’s conclusion that Thick & Frosty is in imitation or semblance of ice cream and ice milk, and consider whether the trial record supports such a conclusion. The Reesman test for “imitation or semblance” is identical to that urged by the appellant Birds Eye, that is: appearance, taste, texture, consistency,, and performance under certain conditions. 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 trial record indicates that any controversy concerning the elements of taste, texture, and consistency involved minor degrees of variance between the parties. Regarding the element of performance, while Thick & Frosty spoons easier than ice cream at colder temperatures and remains at the bottom of a glass of milk, both products mix well with milk to form a milk shake similar to that served at a drive-in restaurant. As stated earlier, uncontroverted testimony relating to the element of appearance placed Thick & Frosty identical to ice cream or ice milk. Thus, the record amply supports the ruling of the trial court that Thick & Frosty is a “filled dairy product”, being “in imitation or semblance” of a dairy product. Pursuant to RCW 15.38.040, as a filled dairy product, Thick & Frosty is deemed “adulterated” for purposes of the Uniform Washington Food, Drug, and Cosmetic Act (RCW 69.04.001-.870), and “misbranded” under RCW 69.04.250. Under the provisions of both the filled dairy products act and the Uniform Washington Food, Drug, and Cosmetic Act, the 28 containers of Thick & Frosty which are the subject of this action were properly embargoed as having been distributed in violation of state law.3

There has been no contention before this court, and certainly no suggestion in this opinion, that Thick & Frosty is not a wholesome food product. However, consumers have a right not only to purchase wholesome food products but also to be informed and advised adequately as to whether the product is an imitation or substitute for some well-known, widely used organic or other natural food product. The packaging and container of the product here involved, i.e., the manner in which Thick & Frosty is presented to consumers in retail stores, does not adequately apprise them of the nature of the product but may very well mislead or deceive them. The police power of this state may be exercised by the legislature quite appropriately in relation to the interest of the consuming public. The legislature has legitimately exercised its judgment in this regard to protect the consumer from confusing, misleading, and deceptive merchandising practices. Reesman v. State, supra. We should exercise judicial restraint in not substituting our judgment for that of the legislature by so interpreting or limiting the legislation that it becomes a useless gesture.

For the reasons indicated, the judgment of the trial court sustaining the embargo order is hereby affirmed.

Hale, C.J., Rosellini, Hunter, and Brachtenbach, JJ., concur.

1 The court found that Thick & Frosty consists of the following ingredients: Water, Invert Sugar Syrup, Sugar, Hydrogenated Vegetable Oil, Nonfat Dry Milk, Glycerol, Sorbitol, Propylene Glycol, Cocoa (processed with alkali), Cellulose Gum, Natural and Artificial Flavors, Carrageenin, Dextrose, Emulsifier, Salt, and Guar Gum.

2 “The term ‘filled dairy products’ means any milk, cream, or skimmed milk, or any combination thereof, whether or not condensed, evaporated, concentrated, frozen, powdered, dried, or desiccated, or any food product made or manufactured therefrom, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat so that the resulting product is in imitation or semblance of any dairy product, including but not limited to, milk, cream, sour cream, skimmed milk, ice cream, whipped cream, flavored milk or skim-milk, dried or powdered milk, cheese, cream cheese, cottage cheese, creamed cottage cheese, ice cream mix, sherbet, condensed milk, evaporated milk, or concentrated milk . . .” RCW 15.38.010(2).

3 This does not mean that General Foods is forever barred from marketing Thick & Frosty within the state of Washington. However, as; we stated in Reesman v. State, 74 Wn.2d 646, 653, 445 P.2d 1004 (1968), the product must incur some modification:

[T]he pertinent statute of this state prohibits dealings in dairy-products containing a fat or oil other than milk fat only if such, products are in “imitation or semblance” of a genuine dairy product.. Manufacturers and distributors of products such as Farmer’s Daughter are not, therefore, absolutely prohibited from carrying on business. They can readily avoid the limited aspect of the legislation by not making and marketing their products so as to be in imitation or semblance of a dairy product. The scope of the statute is thereby limited to and logically related to its purpose.

Pursuant to RCW 69.04.250, the Thick & Frosty package must bear “in type of uniform size and prominence, the word ‘imitation’ and, immediately thereafter, the name of the food imitated;” here, ice cream and ice milk. On the other hand, the filled dairy products act requires that the appellant modify such characteristics of Thick & Frosty as are in imitation or semblance of ice cream and ice milk, i.e., those qualities of the product which bear a causal relation to consumer confusion and deception.