All this talk about fundamental rights, strict scrutiny, and the New Deal has made me hungry, and the only thing that can hit the spot is a tasty, healthful, and “unadulterated” snack made with Milnut produced by The Carolene Product Co. of Litchfield, Illinois. Good thing I just received in the mail from a winning eBay bid a recipe book from 1939, titled “60 New Recipes for Milnut.”
Milnut, for those of you who have no clue what I am talking about, was, in the words of Justice Stone in United States v. Carolene Products, a “a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream.” This famous Supreme Court considered whether the sale of Milnut violated the “Filled Milk Act” of 1923–which prohibited “the shipment in interstate commerce of any skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream.” Carolene Products was indicted on the grounds that Milnut “‘is an adulterated article of food, injurious to the public health,'” and that it is not a prepared food product of the type excepted from the prohibition of the Act.” The Supreme Court–in an opinion that gave birth to the famous Footnote Four–found that the Filled Milk Act was “presumptively within the scope of the power to regulate interstate commerce and consistent with due process.”
What is fascinating is that the Recipe Book is copyrighted 1939, after the Supreme Court’s opinion was delivered on April 25, 1938. A very important word is missing from this recipe book–milk! The product is referred to only as Milnut, with no reference to milk. In other words, following this case, Milnut no longer shipped in interstate commerce products “in the imitation or semblance of condensed milk or cream.” It is just, well, Milnut, whatever the heck that is (but we do know it is “So Rich It Whips!”).
So Carolene Products started selling (presumably) the exact same product, without calling it milk, and it was now legal. Yet another reminder how Supreme Court cases have an impact on more than just law profs.
In case you were wondering, Milnot (the name was changed in 1939 after the Supreme Court case) is still on sale today. And it is labeled as “Evaporated Filled Milk” (the FIlled Milk Act was repealed decades ago, so I think this is legal). You can purchase Milnot online from Smuckers (I bought a case!).
I have also purchased a case of Ollie’s BBQ sauce from the Olie’s BBQ of Katzenbach v. McClung fame.
I am collecting these trinkets for a book project with my colleague Yaakov Roth, titled Constitutional Places, Constitutional Faces. If you have photographs, or even better, actual items, from famous Supreme Court cases, please drop me a line at jblackman at harlaninstitute dot org. I’d love to include them in our collection. Some of our pictures are available here and here.
Cross-posted at ConcurringOpinions.com.