LABELING ON ICE MILK PRODUCTS
The use of the name "Icy Kream" on the label of a frozen milk product is misleading.
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November 25, 1953
Honorable Sverre N. Omdahl
Director of Agriculture
Olympia, Washington Cite as: AGO 53-55 No. 175
Attention: !ttMr. Cameron S. Adams, Assistant Supervisor
Division of Dairy and Livestock
This is in response to your request for our opinion on the question whether or not the use of the name "Icy Kream" on the label of a product conforming to the standards of quality for ice milk is misleading.
In our opinion, the answer to your question is "yes."
The legislature has prescribed standards of quality for ice cream and ice milk products with the principal differentiation being the milk fat (cream) content.
"Ice cream" is that frozen product made from the combination of milk fats, milk solids and sugar, with or without harmless coloring or flavoring matter, or the addition of pure gelatine or vegetable gums and which contains not less than 10% of milk fats and not less than 20% of milk fats and milk solids combined (RCW 15.32.040)
"Ice milk" is that frozen product made from the combination of milk and sugar, with or without harmless coloring or flavoring matter, and containing not less [[Orig. Op. Page 2]] than 3.25% of milk fat, and not more than .6 of 1% of pure and harmless vegetable gum or gelatine. (RCW 15.32.040)
That ice cream is a proper subject for legislative regulation has been recognized inCommissioner v. Crowl, (Penn.) 91 Atl. 922, where the purpose of such regulation is to suppress false pretenses and to secure honest dealings in the sale of an article of food. Therein the court states that the name "Ice Cream" implies the use of cream in its composition, and the product enters so largely into the food supply of the public that it becomes a proper subject of legislation, especially in view of the opportunities which its manufacture affords to practice imposition.
In a former opinion addressed to the Director of Agriculture, June 3, 1939, this office advised that the term "Ice Cremo" used in connection with the sale of a product meeting the standards of ice milk was misleading.
Animal feed products sold under the trade name "Egg-O-Milk" and "Milkmalt Co's. Blend" were held to be misbranded for the reason that the names represented expressly or by implication that the products contained substantial amounts of milk and eggs when such was not the case. U.S. v. G. Fred Obrecht, (D.C. Md. 1945) F.S.A. Notices of Judgment, Foods No. 8894. In Brougham v. Vlanton Mfg. Co., 249 U.S. 496, 63 L.Ed. 725, the United States Supreme Court held that under the Federal Meat Inspection statutes, the term or trademark "Creamo" was misleading as implying a cream content. The use of the word "Creamo" as a trade name for oleomargarine which contained skim milk, but no cream, has also been held to be false and deceptive. Irwin v. Federal Trade Comm., 143 F. (2d) 316.
There is no act comparable to the Federal Trade Commission Act in the State of Washington. However, the Food, Drug and Cosmetic Act provides in RCW 69.04.250 that a food shall be deemed to be misbranded if its labeling is false or misleading in any particular, or if it is offered for sale under the name of another food. Also, RCW 69.04.290 provides, as follows:
"If a foodpurports to be or is represented as a food for which a standard of quality has been prescribed by regulations as provided by RCW 69.04.190, and its quality falls below standard, it shall be deemed to be misbranded unless its label bears in such manner and form as such regulation specifies, a statement that it falls below such standard." (Emphasis supplied)
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At our request, you have furnished us with a sample carton which the distributing dairy proposes to use in the sale of "Icy Kream." We note that the label contains the statement "an ice milk product" in smaller letters.
The problem is a pure question of fact. Would the carton tend to mislead the public into believing that the product is ice cream as defined by statute? In an opinion written by this office August 5, 1949, addressed to the Department of Agriculture [[Opinion No. 49-51-101]], we advised that a label containing the word "Kreamilk" in combination with the word "homogenized" is not a misleading label. In that instance, however, the name "Kreamilk" did not refer to a product for which the legislature had prescribed standards of quality, and the product met the standards of homogenized milk as prescribed by the legislature.
The substance here meets the standards of an ice milk product but not those set for ice cream. The trade name appearing on the carton is deceptively similar to the words ice cream. In order to avoid deception of the public, it would seem that the explanatory words "an ice milk product" must be at least as prominent as the trade name.
We are of the opinion that the proposed carton would tend to mislead the public.
Very truly yours,
Assistant Attorney General