Mahoney v. Carolene Products Co.

2 F.2d 366, 1924 U.S. App. LEXIS 2054

Opinion

PER CURIAM.

We are of the opinion that the injunction in this case was properly issued; that the construction placed by the District Court upon section 17a¹ of chapter 94 of the General Laws of Massachusetts, as amended by St. 1923, c. 170, as applied to the manufacture and sale of plaintiff’s product, carolene, is correct; that the act proscribes the addition of fat or oil, other than milk fat, to whole milk, cream, or skim milk, and the blending or compounding the same therewith, with intent to sell, etc.; that it does not proscribe- the addition of egg yolk, but of fat or oil, as such, other than milk fat. Egg yolk is not a fat or oil, even though it may contain some fat. To construe the statute as covering earolene would also proscribe the manufacture and sale of such compounds as milk shake (which contains eggs) and milk chocolate (chocolate contains fat) and other products of like character sold in great quantities throughout the country. The construction here upheld is not incompatible with the language or spirit of the statute.

The decree of the District Court is affirmed, with costs to the appellee.

1

Sec. 17a. No person himself or by his servant or agent shall, for the purposes of sale or exchange, add any fat or oil other than milk fat to, or blend or compound the same with, any milk, cream or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, nor shall any person himself or by his servant or agent sell, exchange or deliver, or have in possession with intent to sell, exchange or deliver, or expose or offer for sale or exchange, any milk, cream or skimmed milk in any of the aforesaid forms to which has been added or with which has been blended or compounded any fat or oil other than milk fat. Whoever violates any provision of this section shall be punished by the penalties prescribed by section twenty-four.