MAHONEY et al. v. CAROLENE PRODUCTS CO.

MAHONEY et al. v. CAROLENE PRODUCTS CO. (Circuit Court of Appeals, First Circuit. November 14, 1924.) No. 1704. Food <®==>7—Massachusetts Filled Milk Act held not to apply to compound containing egg yolk; “fat or oil.” Massachusetts Filled Milk Act, prohibiting the addition of any fat or oil, other than butter fat, to milk, cream, or skimmed milk, or- to any blend or compound thereof, with intent to sell the same, held only to proscribe the addition of fat or oil as such, and not to apply to “carolene,” a compound of skimmed milk and egg yolk, subjected to partial evaporation and sold for use in coffee and baking, though the egg yolk contains a very small percentage of fat. Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.. Suit in equity by the Carolene Products Company against Francis X. Mahoney and others. Decree for complainant, and defendants appeal. Affirmed. For opinion below, see 294 F. 902. P. Nicholas Petrocelli, Asst. Corp. Counsel, of Boston, Mass. (E. Mark Sullivan, Corp. Counsel, of Boston, Mass., on the brief), for appellants. Robert G. Dodge, of Boston, Mass., and J. "V. Oxtoby, of Detroit, Mich., for appellee. Before BINGHAM and JOHNSON, Circuit Judges, and HALE,- District Judge. [MAJORITY — PER CURIAM.] 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 17a 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. 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.