Appeal, No. 21, May T., 1955, from decree of Court of Common Pleas of Dauphin County, in Equity, No. 2045, in case of Commonwealth of Pennsylvania ex rel. Robert E. Woodside, Attorney General v. Sun Ray Drug Company and Carlo Galletta and Richard Nasuti, trading as Carl-Rich. Decree reversed.
Morris Wolf, with him Samuel Handler, Robert B. Wolf, Compton, Handler & Berman, and Wolf, Block, Schorr & Solis-Cohen, for appellants.
Samuel M. Jackson, Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellee.
John B. Martin, with him Samuel Schrekengaust, J. Grant McCabe, III., McNees, Wallace & Nurick, and Duane, Morris & Heckscher, for intervening appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
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 PS § 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 non-fattening. 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 nutritious, 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: "... Fifth. If it is imitation ice cream or ice cream substitute, as defined in this act. Sixth. If it is offer for sale from any ...