Thursday 1 June 2017

Milk Stout legally defined

I'm back with Milk Stout again. Intrigued as to how Mackeson's court case against Jenners turned out? Well, you'll find out today.

It's such a weird case, which basically hung on the definition of what constituted Milk Stout. Mackeson's argument was that to be called Milk Stout a beer had to contain a considerable amount of lactose, something Jenners disputed.

At Tower Bridge Police Court on Saturday morning Mr. Rose gave his decision in the milk stout case, in which Messrs. R. H. Jenner and Sons, brewers, of Southwark Park-road. London, S.E., were summoned at the instance of Messrs. Mackeson and Co., brewers, of Hythe, under the Merchandise Marks Act. for selling stout to which a false trade description had been applied.

Mr. Moritt appeared for the complainants, and Mr. Kerley for the defendants.

Mr. Rose said the false trade description alleged, was contained in the words, "Milk stout," and from the evidence given in support and refutation of the allegation he found the following facts: —In the years 1908, 1909 and 1910 patents were granted for improvements of malt liquors chemically known as lactose, to such malt liquors as beers, stouts, and porters. The complainants acquired the patents in 1908, and thenceforth proceeded to brew under them a beverage to which they gave the name "Milk Stout." It was made the addition of 9lbs. of lactose to each 36 gallon barrel of stout. They sold and advertised the beverage, and granted 14 licences to other persons for the making and sale thereof. Although doctors had occasionally prescribed a mixture of stout and milk to patients, and although about thirty years ago a patent was granted to some foreigners for making "milk stout," no such liquor seemed have been made and sold, and no article of commerce of the nature or name of "milk stout" was in the market, or known before the complainants' beverage, "milk stout.""
Hastings and St Leonards Observer - Saturday 03 February 1912, page 7.
According to Mackeson 9 lbs of lactose per 36-gallon barrel constituted a Milk Stout. That's pretty straightforward. Interesting that in just a couple of years they had already issued 14 licences to other breweries.

"A patent was granted to some foreigners" sounds rather Daily Mail, don't you think? How exactly is that relevant? Would the patent still have been in force if it hadn't belonged to Johnny Foreigner?

Jenners, however, has their own take on Milk Stout:

"About 18 months ago the defendants, after experiments by their brewers, began to make and sell a stout containing one pound of dry milk powder in each 36 gallons of the liquor. The bottles were labelled the defendants "Milk stout," in large type, and the labels described the contents "a full-bodied, soft-flavoured, easily digested stout, containing a large proportion of the nutritive matter, and highly recommended for its food value" This "milk stout" was analysed, on behalf of the complainants by eminent analytical chemists, who failed to detect in it any lactose. But on the evidence the defendants it would seem that their stout contained half a pound of lactose to the 36 gallon barrel, and certain other constituents of milk. Counsel for the defence contended that "milk stout" was no trade description all; that the words had no definite meaning; that if they meant stout containing ingredients of milk, the defendants' beverage contained them rather than the complainants', and that the quantity of those ingredients was immaterial."
Hastings and St Leonards Observer - Saturday 03 February 1912, page 7.
 As far as Jenners were concerned, if a Stout had some form of milk in it in any quantity, then it could be called a Milk Stout. Which is a very loose definition. Though I must admit that they do have a point.

Unfortunately for them, the only person whose opinion mattered at this point, the magistrate, disagreed with them:

"He (the Magistrate) had only to decide whether the defendants were liable penalties under the Merchandise Marks Act, 1887, for selling, etc.. goods which

had been applied. The words used in section 3 of the Act were not "description of the material," but only "as the material of which any goods are composed." The question was were the words "milk stout" a description as to the material of which the liquor was composed. The words "milk stout were two common words, but the combination seemed, on the evidence, and in his experience, to be new. The complainants appeared the first persons to combine them, and to apply them to a special concoction of their own. Mr. Mackeson said that apart from the label and qualifying words he should expect "milk stout" to mean milk and stout mixed together, but it was doubtful whether most people would expect the same hearing the expression for the first time. The omission of the conjunction "and" between the words could not disregarded, for it was habitually used in the popular description of so many merely mixed beverages, such as sherry and bitter, brandy and soda, and whiskey and seltzer, nor could the defence rely on the compound mixed milk punch as an example of the ommission the conjunction, because the punch in that case was not another liquor mixed with milk, but the name of a compound of milk and spirits when they were mixed. The combination of the words was new. but it bad been published somewhat extensively by the complainants and their licensees, and had become generally known to the brewing trade, and to a large body of the public as the trade description of a kind of stout each pint of which contained a substantial quantity of the nutritious ingredient of milk called lactose, or milk sugar in solution. In his opinion the expression "milk stout" was a trade description within the meaning of the Act of the beverage brewed by the complainants and licensees under the patents. After becoming so known the term was applied by the defendants to stout brewed by them, which contained no appreciable quantity of lactose, although it contained some other ingredients of milk. Having come to the conclusion that "milk stout" was a trade description of stout containing a substantial quantity of lactose, he determined that it was a false trade description when applied by the defendants to stout which did not contain an appreciable quantity lactose. At the same time he thought that it was applied without any fraudulent intent, and in the bona-fide belief that the complainants had acquired no right to the exclusive application of the term "milk stout" to the beverage made and sold by them, and that if ingredients of milk were combined with stout by any other process, or in any other proportions than those patented, the name could be lawfully applied the combination.

Defendants were fined £5, and thirty guineas costs.

Mr. Moritz suggested that the Magistrate should give fifty guineas as costs.

Mr. Kerley. I beg to draw attention to the fact that this is a very valuable monopoly, and complainants have succeeded getting it. (Laughter.)

Mr. Kerley also intimated that defendants would consider the advisability of appealing to Sessions, or asking the Magistrate to state a case."
Hastings and St Leonards Observer - Saturday 03 February 1912, page 7.
Jenners problem was only coming up with their version of Milk Stout after Mackeson had already got the term into common usage. And had established it as a Stout containing lactose. Obviously, they were trying to cash in on a new trend. Something they couldn't do with a licence, as Mackeson had already issued an exclusive licence for London to someone else.

The magistrate went pretty easy on Jenners when it came to punishment. £5 wasn't exactly a huge fine.

I'd love to see a similar case today arguing about what constitutes an IPA. I could imagine Stone taking Charles Wells to court over their version of IPA. How would their argument go? Probably that IPA had to have a minimum of 6% ABV and 80 IBUs. Though I guess the fact that Wells had been brewing their version for sveral decades before Stone was even founded might have undermined their argument a bit.

Can you think of any other fun beerstyle defining court cases? What about one against a brewer for calling a beer Stout but not using any roast barley? Or a Mild containing too many hops. Possibly against a southern brewery for brewing a Brown Ale that was too strong?


qq said...

Would be interesting to track down the "foreigners" patent. One possible significance would be that it was essentially a "defensive" patent, protecting the home market of the foreigners from milk stout being made in Britain, without the intention of making it in Britain themselves. If indeed the patent was a British one at all...

Another possible significance of the foreigners might be that they were planning to make it in Britain, but then were caught up in either the Franco-Prussian war or the Long Depression of the 1870s/80s and so nothing ever came of it beyond the patent.

Rob Sterowski said...

It’s a pity the breweries taken to task by Newcastle Trading Standards in the 1940s didn’t cite this case as a precedent, establishing that Milk Stout was a legitimate name and not misleading.

Anonymous said...

I could imagine an interesting case over oatmeal stout. I seem to recall you have printed recipes from the past with so few oats they might as well have just waved a picture of an oat by the mash and been done with it.