Opinion
June 29, 1961
Appeal from a judgment of the Supreme Court, Albany County, entered upon the decision of an Official Referee. Plaintiff as Commissioner of Agriculture and Markets sues defendants for an injunction to prevent their selling Instantwhip Topping on the principal ground that the product is an imitation of instant whipped cream in violation of section 68-a Agric. Mkts. of the Agriculture and Markets Law which insofar as here pertinent prohibits the sale of a product "in the semblance of or in imitation of" instant whipped cream, which product is made by adding nondairy fat or oil to be mixed or blended with a dairy product. After a trial the Official Referee granted judgment for the defendants. The validity of this statute depends on whether it is designed to prevent fraud and deception, i.e., the imitation of instant whipped cream by use of materials other than cream and milk so as to lead consumers to think that the product was actually whipped cream (see People v. Arensberg, 105 N.Y. 123). Although there is proof in the record that the defendant's topping resembles whipped cream "in general appearance", there is other proof that in working out the formula which is used in making defendant's topping there was no effort to imitate instant whipped cream, but that the product that resulted from experimentation gets its taste and appearance from "the inherent characteristics of the ingredients of the topping" and that this is what made it "resemble" instant whipped cream. Something more than an incidental resemblance is needed to merit a judgment of injunction against manufacturing a food product otherwise lawful. An intent to mislead is required ( People v. Arensberg, supra) and this, indeed, is implicit in the phrase "in the semblance of", which appears in section 68-a. We hold that it was not reversible error for the Official Referee to find on this record that plaintiff had not met the burden of proof of establishing a purpose to deceive and mislead. Moreover, the comparisons of products on which substantial parts of plaintiff's technical proof was based was not with instant whipped cream, but with another product of the defendants. Judgment affirmed, with costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur. [ 10 Misc.2d 113].