August 24, 2015 • 28 mins
There was a time when Popsicle and Good Humor couldn't stop suing one another about frozen treats on sticks. Many legal battles were fought over milk fat, the shapes of the desserts and the definition of the word "sherbet."
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Episode Transcript
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Speaker 1 (00:00):
Welcome to stuff you missed in history class from house
works dot com. Hello and welcome. I'm training and I'm
Holly frying. So I researched this episode in the middle
of summer, in the middle of a week plus of
(00:23):
five temperatures above ninety degrees, which, yes, I know that
is not terribly hot everywhere. Please do not email us
with weather one upmanship emailing us in solidarity about how
you are also hot. It's fine, Uh yeah, thanks to
various aspects of my apartment, ninety degrees outside is really
(00:43):
unbearably hot inside. And I've also done a run of
researching very dour episodes lately, So I wish it were
colder has combined with I wish these episodes weren't so
devastating to form today's subject, which is about the time
that Popsicle and Good Humor could not stop suing one
another about who got to make which frozen treats on sticks.
(01:11):
I love hot weather, so I do not wish it
was colder. Universe, don't listen to treacy. But first we
are going to start with the charming origin stories of
the two treats in question, both of which have a
hefty dose of wholesomeness and Americana. So first we're going
to talk about popsicles. So keep in mind frozen treats
themselves have been around a lot longer than this, and
(01:34):
you can listen to our episode on the history of
ice cream if you want those details. To add to that,
a lot of origin stories of famous iconic foods have
become really romanticized and have kind of an apocryphal element
to them, and that is the case with this one too,
because the details vary a lot depending on who was
telling the story, but the basics are in five. Frank
(01:58):
Epperson mixed soda powder and water and left it outside
his Oakland, California home with the wooden stir still in
it overnight. When he found it in the morning, it
was frozen. So that is a lot of serendipity happening
all at once, because it very very rarely gets below
freezing in Oakland, California, and Frank ate this frozen soda
(02:20):
water on a stick, and behold, it was delicious. And
he named it the epsicle, you know, like Epperson plus icicle.
He was at this point, and like an eleven year
old might be expected to do, he made more of these,
and he started selling them to his neighbors. This really
wasn't much more than a lemonade stand asque cobby until
(02:41):
Everson was a grown man who was making a living
in real estate. In two he made some of his
frozen treats for a fireman's ball, and at some point,
reportedly on the advice of his children, Everson also changed
the name from epsicle to popsicle. This time it combined
icicle with what his children were calling him, which was
op In nineteen twenty three, Epperson teamed up with employees
(03:04):
of Low Movie Company and launched Popsicle Company. This company
started selling popsicles at Neptune Beach, which was a waterfront
amusement park near where Eperson lived in California, and soon
he was licensing popsicles to be sold at other amusement
parks as well. On June eleven four, he applied for
a patent for his invention, which was granted on August
(03:25):
nineteenth of that year. The patent is for a quote
frozen confectionery. His invention, according to the patent, improved on
other frozen confectionery in that you could eat it without
using a utensil and without contaminating it with your hands.
Plus it was easy to make without a lot of
complicated or hard to sanitize equipment. To make a popsicle.
(03:47):
According to the patent quote, small containers which maybe ordinary
test tubes, are charged with the liquid syrup from which
the confection is frozen, and the handlesticks are inserted there
into and pres down into contact with the bottoms of
the containers to overcome the buoyant effect of the liquid.
The syrup is then subjected to intense refrigeration so that
(04:09):
it is frozen solid within a few minutes. The test tube, confection,
and stick are thus frozen together into a rigid mass
from which the test tube container is removed by drawing
outward on the handle after slightly loosening the container from
the confection. The pattern also advises using a sapless, tasteless,
porous wood for the sticks so that the syrup freezes
(04:30):
into it and the stick doesn't just slide right out
when you pull it, which I know happens to me
sometimes when using classic popsical molds. So only a couple
of months after this patent was granted, Everson was low
on money, and he sold all of his patent rights
to Popsicle Corporation, which carried on expanding the pop business
(04:51):
without him. At about this same time, a business called
Citrus Product Company was also selling frozen flavored water pop ups.
They called them frozen suckers, which were marketed as an
alternative to soft drinks. This may sound counterintuitive, you know
how if you suck on an ice pop, you can
suck all the flavored syrup out of it and just
be left with ice. That is probably the worst thing
(05:14):
about popsicles, but in the nineteen twenties this was actually
a selling point. Pops were sold as drinks that had
been in solid form. I was totally missing this nuance
until I read the actual like judges ruling in one
of these lawsuits, and then I was like, wait, wait
a minute, You're supposed to suck on it until all
(05:34):
the syrup comes out and your left with just a
stick of ice. Because I have always deliberately not eaten
them that way, because that bothered me as a child
to have this chunk of flavorless ice lift over. So
in Joe Lo of the eponymous Joe Low Corporation or
Joe Loco wanted to duplicate the success of citrus products
(05:57):
solid beverages. Joe Loco was a major her supplier to
bakers and confectioners, and it did a lot of business
selling ingredients to the ice cream industry. So Joel thought
he could combine his existing business network with the patent
that he knew that Popsicle Corporation had and sell lots
of frozen pops. So Joelo went to Popsicle Corporation and
(06:19):
eventually became its sales agent. And that is the business
arrangement that was in place when Popsicle eventually faced off
against Good Humor Bars. So now for that story. Good
Humor Bars were the invention of Harry Burt of Youngstown, Ohio.
Bert started off making candy and one of his first
creations was the Jolly Boy Sucker, which was basically a
(06:42):
lollipop in he figured out how to make a chocolate
coating that would stick to ice cream and solidify. Bless you,
Harry Burt. He gave his daughter Ruth some ice cream
coated with this shell, and she liked it, but she
thought it was too messy. Bert's son, Harry Junior or
suggested using the sticks from the the jolly boys suckers
(07:03):
to make an ice cream bar coated with chocolate on
a stick. This became the Good Humor bar, and soon
Bert was selling these bars from trucks and carts that
were equipped with freezers and bells, and they were driven
by men in clean white uniforms who tipped their hats
at ladies and saluted gentlemen. These good Humor men became
a summertime staple in the United States from the nineteen
(07:24):
twenties until the nineteen seventies. Harry Burt also made uniform
molds and recipe standards so that he could work with
different manufacturers to churn out the bars while ensuring that
people would get a consistent product no matter where they
purchased it from. This is how a lot of businesses
work today, but this was a relatively new idea at
this point. Bert also applied for his own patent. It
(07:46):
was called a Process of Making Frozen Confections, and he
applied for it on January thirtieth nine two. It was
granted him on October ninth, reportedly after he took a
bunch of Good Humor bars to the patent office. But
I couldn't find substantiation for that Bird's patent described making
a confection that has a quote frozen body portion or
(08:08):
heart quote which starts off soft or fluid but has
been hardened by refrigeration. Here's how it describes this process. Quote.
To this end, the handle member, which may or may
not be of an edible substance, is suitably attached to
the frozen body portion and utilized in the subsequent operations
incident to the manufacture of the confection, as well as
(08:30):
by the ultimate consumer when eating the confection I eat,
I put a stick in it. Both of these patents
are in their own way charming, but I find the
popsicle one just to be written in a more delightful
way than the Good Humor one. I think most patents
(08:50):
often come off that way because they they're trying to
cover their bases and make sure everything is accounted for,
and sometimes the language gets very stilted and quite as
you said, charming. Uh. The process for making a Good
Humor bar differed a little from the popsicle. So the
popsicle starts with liquid in a test tube, a stick
stuck in, and the whole thing frozen, and then it's
(09:11):
pulled out essentially against a vacuum after some jostling. The
process of making a Good Humor bar starts with the
partially frozen ice cream in a container which the stick
goes into. There's ideally a hole in the bottom of
the container which may be covered temporarily, which allows the
air to come in when you remove the bar, making
that stup easier, and then it's frozen the rest of
(09:32):
the way, removed from the container and coated with an
edible coating that solidifies. So there are definitely some similarities
in these two patents. Both the Good Humor and Popsicle
patents tout the virtues of not having to touch the
product with your unsanitary, gross hands. They also both have
a combination of sticks and vessels and frozen deliciousness. There
(09:53):
are differences though, as well. Popsicles at this point were
mostly fruit flavored waters and syrups, while Good Humor bars
were obviously ice cream. Popsicles were thought of as solid beverages,
and Good Humor bars were desserts, and popsicles were shaped
basically like a cylinder, while Good Humor bars were more
(10:15):
like a rectangle, so the typical consumer could immediately figure
out the difference between a popsicle and a Good Humor
bar without really having to think about which was which,
I'm imagining the person holding one of each and going
I can't tell. However, these two companies had some legal
(10:38):
bones to pick, and we're going to talk about those
after we have a brief sponsor break. So, although Good
Humor and Popsicle did eventually face off against one another
in court, their first legal battles were actually against other companies.
There was a lot of ice cream innovation going on
around the turn of the twentieth century. Ice Cream cones
(10:58):
debut at the very end of the eight hundreds, and
waffle cones came on the scene just after that, Eskimo
Pies came out in and there were lots of different
companies tinkering with various other frozen concoctions. However, when it
came to frozen treats on sticks, Harry Burt really thought
his patent covered all of them. It described a process
(11:19):
of making a frozen treat on a stick, not a
product made from that process, so regardless of exactly what
that end product looked and tasted like, he considered the
act of making it his own invention. Bert soon filed
suit against Citrus Products of frozen sucker fame, who we
talked about before the break. Originally, these two businesses were
(11:41):
actually on pretty good terms. Citrus Products did not think
that they're frozen suckers were patentable, that didn't really consider
it to be unique enough to require or uh lead
to a patent. But since harry Bird did have a patent,
it thought it had better cover all of its bases
by working out a licensing agreement. However, the two companies
(12:03):
couldn't agree on terms after repeated attempts, and on August
Burt filed suit against Citrus Products claiming patent infringement and
unfair competition in trade. Citrus Products intended to take this
suit to trial, hoping that the court would set some
limits on what Bert's patents did or did not cover.
(12:24):
Burt himself claimed that it was quote so broad that
it is impossible to make the suckers without infringing the
same But in ninety six, at Birt's request, the suit
was dismissed. Meanwhile, Popsicle Corporation was waging its own legal
battles against other companies that were making frozen pops on sticks.
First came Cold Cake Company in New Jersey and MB
(12:48):
ice Cream Company in Texas. In all of these companies
had non standard spelling. Cold Cake Company was spelled with
k's instead of seeds for cold and cake an MB
ice Cream Company Ice has spelled I s E, and
cream is spelled k r E a m. A Court
upheld Popsicles patent on November twentie of that year, and
(13:10):
the following year It's filed suit against the more companies,
including several Philadelphia businesses, and Horn ice Cream Company of
Maryland and Robert Bayer of New York, neither of which
is spelled weirdly at all. It turned out that both
Horn ice Cream and MB ice Cream were affiliated with
Citrus Products. Citrus Products said it was actually MB ice
(13:31):
Cream that developed the frozen sucker in the first place.
So at this point both Harry Burt and Popsicle Corporation had,
in one way or another sued Citrus Products. While Bert
eventually had his suit dismissed, Popsicle and Citrus settled out
of court. Then, in February of the two major players
in our story finally faced off in court against each
(13:53):
other when Bert filed suit against Popsical Corporation in the U. S.
District Court of Southern New York. That October, the two
companies reached a legal agreement together. In this agreement, they
agreed not to sue each other anymore. Popsicle Company got
the rights to make cylindrical frozen things on sticks out
of syrups, water, ice, and shervets, and Bert got to
(14:15):
make rectangular frozen things on sticks out of ice creams
and frozen custards. This cut Citrus Products out of the
frozen pop game, so in nine seven it worked out
a deal to join Joe Loco in acting as Popsicles agents.
So we wound up with in the syruppy fruity frozen
cylinder camp, Joe Loco, Citrus Products and Popsicle Company working together,
(14:39):
and in the rectangular ice cream bar on stick camp
good Humor. These businesses spent the next several years making
their specified varieties of frozen treats. That is, until Popsicle
wanted to make its products creamier. You can imagine that
might cause a problem, and we're going to talk about
that after we have a brief word from a sponsor.
(15:01):
Harry Bert unfortunately did not get to see much of
his company's success. After its first round of legal issues
with Popsicle were resolved, he died in and left his
business to his wife, Cora. She sold basically everything related
to the Good Humor business except for the popsicle licensing,
to Midland Food Products Company, which changed its name to
(15:21):
Good Humor Corporation. Cora Bert actually later remarried and became
Corrobert Roller, and Good Humor was later sold to MJ. Mihan.
But then came another big change, and that was the
Great Depression. Because they were made of frozen waters and syrups,
popsicles were really pretty cheap to make. Good Humor Bars,
on the other hand, started with ice cream, which was
(15:43):
just more expensive. So Good Humor bars sold for ten
cents apiece and popsicles could go for half as much.
When financial times got tough, people who couldn't afford ten
cents for a Good Humor Bar might be able to
pay half as much for a popsicle. According to its
ad campaigns, more than two two hundred million popsicles were
sold in ninety one alone. Eventually, though, some of popsicles
(16:06):
licensees wanted to be able to sell some kind of
cheap competitor to good humor bars. Dairy prices were falling,
which made the idea more feasible feasible than it had
been when good humor bars are first developed. So in
the fall of nine one, Popsicle, Joe Loco, and Citrus
Products all got together and approached Good Humor with the
proposed revision to their ninety five agreement. This trio of
(16:30):
companies wanted to manufacture products that more resembled ice cream
but contained less than four point five percent butterfat, also
known as milk fat. Good Humor would retain the rights
to making products that contained more milk fat than that.
The Popsicle, Joe, Loco Citrus alliance thought it had a
(16:50):
strong case here, since the agreement specified that Popsicle could
make sherbet based products. Today, sherbets are made with about
one to three percent milk fat, and frozen dessert manufacturers
generally agree that sherbet's do include milk fat, but there
wasn't a legal definition or even a working industry definition
for what sherbet's actually were, and a lot of people
(17:13):
use the term synonymously with sorbet, which is a frozen
fruity dessert which generally includes no more than a trace
of dairy. So the Popsicle argument was, we can make
these dairy based bars based on our original licensing agreement,
because that says we can make frozen treats out of sherbet.
The Good Humors car counter argument was that's not what
(17:35):
Sherbet means, and we are the only ones who can
make dairy based ice cream bars on sticks. Of course,
Good Humor was also protecting its own interests here. It
was on the verge of launching its own less milk
fatty version of the Good Humor bar, called the Cheerio Bar,
which would cost five cents and be more like a
frozen ice milk bar than a frozen ice cream bar.
(17:56):
The result of this attempt at agreement was that Popsicle
just it ahead and gave its licensees permission to start
making a so called milk popsicle, regardless of how the
Good Humor company felt about it. The milk popsicle had
four point four eight percent butter butter fat, so it
was barely under the line that it had presented to
(18:17):
Good Humor as the upper threshold for products it was
interested in making. The milk popsicle also departed from the
cylindrical shape that had been outlined in those first Popsicle patents. Instead,
the milk popsicle was shaped for like a keystone. Unsurprisingly,
Good Humor took Popsicle to court, cleaming infringement on two fronts,
(18:38):
for sure making a popsicle with milk in it, and
then for making a rectangular popsicle. When it came to
presenting their evidence in court, the heart of the two
companies arguments was exactly how you define sure of it.
They pulled in definitions from dictionaries, they talked to ice
cream industry experts, and also thirty two different state regulators
on how you defined ice cream in different states. But
(19:02):
in the end, none of that really mattered, and Judge
John Jay neild based his ruling on something else entirely
with the two companies believed when they had signed their
agreement in the first place. He pointed out that Popsicle
had been making its products with water based mixtures, not
milk based mixtures, for six years with no problems. He
didn't get into the issue of the shape of the
(19:23):
bar at all. Judge Neilds issued an injunction against the
Milk Popsicle on ninety two if you read his court ruling.
His tone is basically, are you too serious? You've been
fine for six years and now you are deliberately doing
(19:44):
this thing that's obviously not what you've been doing. Go
to your room, like, couldn't we solve this problem six
years ago? So uh? The judge did not resolve the
differences between Good Humor and Popsicle, and both of them
appealed each for different reasons. Good Humor wanted the court
(20:04):
also to find that the milk popsicle was a rectangular
shape and that was a problem. Popsicle wanted the court
to find that their definition of sherbet was legitimate. I
love this, And the thing is, I know that when
you're talking about this on the scale of big business,
(20:25):
this is a very real and serious battle. But just
the idea of someone putting so much money and effort
and research into arguing over what sherbet is the lights
and and makes me giggle. The fact that they got
expert testimony from thirty two different states state regulators about
what sherbet is. That sounds like the most pedantic food
(20:46):
conversation ever in a court of law, which I actually
would love to read through the whole thing at some point,
but the Third Circuit Court of Appeals affirm Judge Neil's ruling,
still declining to weigh in on what sherbet is or
how the milk popsicle was shaped. However, before the court
had a chance to actually render this opinion, Good Humor
Im Popsicle signed a new agreement on April seventh of
(21:09):
nineteen thirty three. The two companies agreed to basically do
what they've been doing for six years, making popsicles out
of mostly water or syrup and making Good Humor bars
out of dairy misfortunately. I guess, depending on whose side
you're on, it was not a total loss for Popsicle.
Joe Loo suggested that Popsicle used this keystone shaped mold
(21:30):
to create a popsicle with two sticks in it, which
could be split and shared. That would let customers get
more of their gradt of their Great Depression dollars by
basically giving them two popsicles for everyone. And as a
side note, that two stick version went off the market
in the mid nineteen eighties, and it was replaced with
a one stick version of roughly the same size, as
(21:53):
hilariously reported in The New York Times, quote small children,
it seemed couldn't look fast enough in alternating sequences to
keep one or the other stick from dripping. This meant
that children were getting two popsicles rather than sharing them
with a friend or sibling, or they were just eating
them without breaking them apart. First, there's a similarly exasperated
sounding quote in this uh in this New York Times
(22:16):
article that talks to one of the popsicle executives, and
it's like, Hey, doesn't this mean you all aren't in
favor of sharing? Uh? And he has a similarly are
you kidding me? Kind of tone and talks about how,
like the weight of the two stick popsicle was this much,
but each of the single stick popsicles it's replacing it
is this much. So it's basically the same thing, just
(22:39):
already broken in half for you. So, in our last
extremely silly twist, M J. Mihans sold Good Humor to
the Thomas J. Lipton Company, a division of Unilever, in
nineteen sixty one. Then Unilever bought the popsicle brand in
(22:59):
nine and six years after the death of its inventor,
Frank Epperson. So, now these two former adversaries who went
to court repeatedly to decide who got to make what
out of frozen stuff on sticks are now both part
of the same business. Oh, popsicles and Delicious Nous break.
(23:21):
Maybe the popsicle people will be here today and I
can go have a popsicle after this. Well, and that's
another thing that I learned about researching this. If we're
talking about King of Pops, which is an Atlanta um
artisanal delicious pop creator, popsicle is still a trademark, so
that is why when you go to their website everything
(23:41):
is described as pops and not as popsicles. I didn't
know this. Apparently in a lever sometimes will aggressively defend
it's popsicle trademark. Well, and it is funny because I
think a lot of people it's kind of like that
Kleenex thing where people call all tissues Kleenex, where most
people call all frozen treats the six Dairy, specifically on
(24:04):
sticks popsicles, but that is a trademark name. Do you
also have a little bit of listener mail for us
to enjoy? I do, And it's it's slightly more serious
than this episode has been. Today. I felt like this
was like the summer break Frozen Treat Let's have class
outside episode. Uh this is from Sumner and Sumner says Hi,
(24:24):
Tracy and Holly. I've been listening to the podcast for
several years now, but haven't had a reason to write
in until now. I just finished listening to the album
Palace episode when you brought up the Tumbler post which
did not mentioned the album Palaces connection to slavery. It
reminded me of what a friends told me about a
recent trip to Portugal. This friend went there with a
free a few Brazilian friends. While touring cathedrals and palaces
(24:48):
and Portugal, he noticed a friction developed between the Brazilians
and the Portuguese tour god and the official tour narrative.
The buildings were symbols of the pride of the Portuguese
Empire for the brazil and they were symbols of colonial oppression.
The Brazilians would frequently ask the tour guide how the
building they were touring was funded and where the building
materials came from. In many cases, none of the tour
(25:10):
guides knew the exact details. But it made my friend
really change his perspective on the beautiful art he was seeing,
especially when looking at the masterpieces of European architecture and art,
we seem to gloss over their connections to colonialism and slavery.
With the masterpieces of the sixteenth and seventeenth century architecture
and art exist if many of their commissioners, nobles, royals,
(25:31):
merchants were not profiting from colonial trade. With the abundance
of gold and silver in Latin, American and Iberian art
from the so called Age of Discovery exist without the
conquest of the Americas and the influx of precious metals
from Mexico and Peru. Although I think you're both quite
right and saying that the Album Palace should be mentioned
in the context of the trans Atlantic slave trade, I
(25:52):
also think that we should take it upon ourselves to
rethink art and architecture we do not immediately associate with
colonialism and the slave trade. I want to thank you
both for giving me something engaging and educational to learn
when I'm commuting to and fround School. Thank you so much, Sumner.
That is a totally valid point, and it is a
point that there have been some really interesting books that
(26:14):
have come out lately that have kind of traced the
ongoing UH legacy of slavery and institutions that people haven't
necessarily associated with slavery. Um. There was one that came
out a couple of years ago that was called Ebony
and Ivy, which was about Ivy League colleges which are
almost exclusively in like New England and other northern parts
(26:39):
of the United States, and how they a lot of
them were initially built mostly on slave labor, which is
not really discussed and not really thought about in the
context of Ivy League schools very often. UM, which I
know there are people who wish we would shut up
about slavery, but I think until until it becomes second
(27:00):
nature to think about the legacies that that created these
great buildings and great works of art and things that
have lasted for hundreds of years that were really built
on exploiting the other other people, I think that will
be something that we will continue to talk about on
the podcast on a regular basis. So thank you again,
Um Sumner for writing to us about that. If you
(27:21):
would like to write to us about this or any
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(27:44):
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we have that at the store to be great. Um. So,
(28:05):
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Welcome to stuff you missed in history class from house
works dot com. Hello and welcome. I'm training and I'm
Holly frying. So I researched this episode in the middle
of summer, in the middle of a week plus of
(00:23):
five temperatures above ninety degrees, which, yes, I know that
is not terribly hot everywhere. Please do not email us
with weather one upmanship emailing us in solidarity about how
you are also hot. It's fine, Uh yeah, thanks to
various aspects of my apartment, ninety degrees outside is really
(00:43):
unbearably hot inside. And I've also done a run of
researching very dour episodes lately, So I wish it were
colder has combined with I wish these episodes weren't so
devastating to form today's subject, which is about the time
that Popsicle and Good Humor could not stop suing one
another about who got to make which frozen treats on sticks.
(01:11):
I love hot weather, so I do not wish it
was colder. Universe, don't listen to treacy. But first we
are going to start with the charming origin stories of
the two treats in question, both of which have a
hefty dose of wholesomeness and Americana. So first we're going
to talk about popsicles. So keep in mind frozen treats
themselves have been around a lot longer than this, and
(01:34):
you can listen to our episode on the history of
ice cream if you want those details. To add to that,
a lot of origin stories of famous iconic foods have
become really romanticized and have kind of an apocryphal element
to them, and that is the case with this one too,
because the details vary a lot depending on who was
telling the story, but the basics are in five. Frank
(01:58):
Epperson mixed soda powder and water and left it outside
his Oakland, California home with the wooden stir still in
it overnight. When he found it in the morning, it
was frozen. So that is a lot of serendipity happening
all at once, because it very very rarely gets below
freezing in Oakland, California, and Frank ate this frozen soda
(02:20):
water on a stick, and behold, it was delicious. And
he named it the epsicle, you know, like Epperson plus icicle.
He was at this point, and like an eleven year
old might be expected to do, he made more of these,
and he started selling them to his neighbors. This really
wasn't much more than a lemonade stand asque cobby until
(02:41):
Everson was a grown man who was making a living
in real estate. In two he made some of his
frozen treats for a fireman's ball, and at some point,
reportedly on the advice of his children, Everson also changed
the name from epsicle to popsicle. This time it combined
icicle with what his children were calling him, which was
op In nineteen twenty three, Epperson teamed up with employees
(03:04):
of Low Movie Company and launched Popsicle Company. This company
started selling popsicles at Neptune Beach, which was a waterfront
amusement park near where Eperson lived in California, and soon
he was licensing popsicles to be sold at other amusement
parks as well. On June eleven four, he applied for
a patent for his invention, which was granted on August
(03:25):
nineteenth of that year. The patent is for a quote
frozen confectionery. His invention, according to the patent, improved on
other frozen confectionery in that you could eat it without
using a utensil and without contaminating it with your hands.
Plus it was easy to make without a lot of
complicated or hard to sanitize equipment. To make a popsicle.
(03:47):
According to the patent quote, small containers which maybe ordinary
test tubes, are charged with the liquid syrup from which
the confection is frozen, and the handlesticks are inserted there
into and pres down into contact with the bottoms of
the containers to overcome the buoyant effect of the liquid.
The syrup is then subjected to intense refrigeration so that
(04:09):
it is frozen solid within a few minutes. The test tube, confection,
and stick are thus frozen together into a rigid mass
from which the test tube container is removed by drawing
outward on the handle after slightly loosening the container from
the confection. The pattern also advises using a sapless, tasteless,
porous wood for the sticks so that the syrup freezes
(04:30):
into it and the stick doesn't just slide right out
when you pull it, which I know happens to me
sometimes when using classic popsical molds. So only a couple
of months after this patent was granted, Everson was low
on money, and he sold all of his patent rights
to Popsicle Corporation, which carried on expanding the pop business
(04:51):
without him. At about this same time, a business called
Citrus Product Company was also selling frozen flavored water pop ups.
They called them frozen suckers, which were marketed as an
alternative to soft drinks. This may sound counterintuitive, you know
how if you suck on an ice pop, you can
suck all the flavored syrup out of it and just
be left with ice. That is probably the worst thing
(05:14):
about popsicles, but in the nineteen twenties this was actually
a selling point. Pops were sold as drinks that had
been in solid form. I was totally missing this nuance
until I read the actual like judges ruling in one
of these lawsuits, and then I was like, wait, wait
a minute, You're supposed to suck on it until all
(05:34):
the syrup comes out and your left with just a
stick of ice. Because I have always deliberately not eaten
them that way, because that bothered me as a child
to have this chunk of flavorless ice lift over. So
in Joe Lo of the eponymous Joe Low Corporation or
Joe Loco wanted to duplicate the success of citrus products
(05:57):
solid beverages. Joe Loco was a major her supplier to
bakers and confectioners, and it did a lot of business
selling ingredients to the ice cream industry. So Joel thought
he could combine his existing business network with the patent
that he knew that Popsicle Corporation had and sell lots
of frozen pops. So Joelo went to Popsicle Corporation and
(06:19):
eventually became its sales agent. And that is the business
arrangement that was in place when Popsicle eventually faced off
against Good Humor Bars. So now for that story. Good
Humor Bars were the invention of Harry Burt of Youngstown, Ohio.
Bert started off making candy and one of his first
creations was the Jolly Boy Sucker, which was basically a
(06:42):
lollipop in he figured out how to make a chocolate
coating that would stick to ice cream and solidify. Bless you,
Harry Burt. He gave his daughter Ruth some ice cream
coated with this shell, and she liked it, but she
thought it was too messy. Bert's son, Harry Junior or
suggested using the sticks from the the jolly boys suckers
(07:03):
to make an ice cream bar coated with chocolate on
a stick. This became the Good Humor bar, and soon
Bert was selling these bars from trucks and carts that
were equipped with freezers and bells, and they were driven
by men in clean white uniforms who tipped their hats
at ladies and saluted gentlemen. These good Humor men became
a summertime staple in the United States from the nineteen
(07:24):
twenties until the nineteen seventies. Harry Burt also made uniform
molds and recipe standards so that he could work with
different manufacturers to churn out the bars while ensuring that
people would get a consistent product no matter where they
purchased it from. This is how a lot of businesses
work today, but this was a relatively new idea at
this point. Bert also applied for his own patent. It
(07:46):
was called a Process of Making Frozen Confections, and he
applied for it on January thirtieth nine two. It was
granted him on October ninth, reportedly after he took a
bunch of Good Humor bars to the patent office. But
I couldn't find substantiation for that Bird's patent described making
a confection that has a quote frozen body portion or
(08:08):
heart quote which starts off soft or fluid but has
been hardened by refrigeration. Here's how it describes this process. Quote.
To this end, the handle member, which may or may
not be of an edible substance, is suitably attached to
the frozen body portion and utilized in the subsequent operations
incident to the manufacture of the confection, as well as
(08:30):
by the ultimate consumer when eating the confection I eat,
I put a stick in it. Both of these patents
are in their own way charming, but I find the
popsicle one just to be written in a more delightful
way than the Good Humor one. I think most patents
(08:50):
often come off that way because they they're trying to
cover their bases and make sure everything is accounted for,
and sometimes the language gets very stilted and quite as
you said, charming. Uh. The process for making a Good
Humor bar differed a little from the popsicle. So the
popsicle starts with liquid in a test tube, a stick
stuck in, and the whole thing frozen, and then it's
(09:11):
pulled out essentially against a vacuum after some jostling. The
process of making a Good Humor bar starts with the
partially frozen ice cream in a container which the stick
goes into. There's ideally a hole in the bottom of
the container which may be covered temporarily, which allows the
air to come in when you remove the bar, making
that stup easier, and then it's frozen the rest of
(09:32):
the way, removed from the container and coated with an
edible coating that solidifies. So there are definitely some similarities
in these two patents. Both the Good Humor and Popsicle
patents tout the virtues of not having to touch the
product with your unsanitary, gross hands. They also both have
a combination of sticks and vessels and frozen deliciousness. There
(09:53):
are differences though, as well. Popsicles at this point were
mostly fruit flavored waters and syrups, while Good Humor bars
were obviously ice cream. Popsicles were thought of as solid beverages,
and Good Humor bars were desserts, and popsicles were shaped
basically like a cylinder, while Good Humor bars were more
(10:15):
like a rectangle, so the typical consumer could immediately figure
out the difference between a popsicle and a Good Humor
bar without really having to think about which was which,
I'm imagining the person holding one of each and going
I can't tell. However, these two companies had some legal
(10:38):
bones to pick, and we're going to talk about those
after we have a brief sponsor break. So, although Good
Humor and Popsicle did eventually face off against one another
in court, their first legal battles were actually against other companies.
There was a lot of ice cream innovation going on
around the turn of the twentieth century. Ice Cream cones
(10:58):
debut at the very end of the eight hundreds, and
waffle cones came on the scene just after that, Eskimo
Pies came out in and there were lots of different
companies tinkering with various other frozen concoctions. However, when it
came to frozen treats on sticks, Harry Burt really thought
his patent covered all of them. It described a process
(11:19):
of making a frozen treat on a stick, not a
product made from that process, so regardless of exactly what
that end product looked and tasted like, he considered the
act of making it his own invention. Bert soon filed
suit against Citrus Products of frozen sucker fame, who we
talked about before the break. Originally, these two businesses were
(11:41):
actually on pretty good terms. Citrus Products did not think
that they're frozen suckers were patentable, that didn't really consider
it to be unique enough to require or uh lead
to a patent. But since harry Bird did have a patent,
it thought it had better cover all of its bases
by working out a licensing agreement. However, the two companies
(12:03):
couldn't agree on terms after repeated attempts, and on August
Burt filed suit against Citrus Products claiming patent infringement and
unfair competition in trade. Citrus Products intended to take this
suit to trial, hoping that the court would set some
limits on what Bert's patents did or did not cover.
(12:24):
Burt himself claimed that it was quote so broad that
it is impossible to make the suckers without infringing the
same But in ninety six, at Birt's request, the suit
was dismissed. Meanwhile, Popsicle Corporation was waging its own legal
battles against other companies that were making frozen pops on sticks.
First came Cold Cake Company in New Jersey and MB
(12:48):
ice Cream Company in Texas. In all of these companies
had non standard spelling. Cold Cake Company was spelled with
k's instead of seeds for cold and cake an MB
ice Cream Company Ice has spelled I s E, and
cream is spelled k r E a m. A Court
upheld Popsicles patent on November twentie of that year, and
(13:10):
the following year It's filed suit against the more companies,
including several Philadelphia businesses, and Horn ice Cream Company of
Maryland and Robert Bayer of New York, neither of which
is spelled weirdly at all. It turned out that both
Horn ice Cream and MB ice Cream were affiliated with
Citrus Products. Citrus Products said it was actually MB ice
(13:31):
Cream that developed the frozen sucker in the first place.
So at this point both Harry Burt and Popsicle Corporation had,
in one way or another sued Citrus Products. While Bert
eventually had his suit dismissed, Popsicle and Citrus settled out
of court. Then, in February of the two major players
in our story finally faced off in court against each
(13:53):
other when Bert filed suit against Popsical Corporation in the U. S.
District Court of Southern New York. That October, the two
companies reached a legal agreement together. In this agreement, they
agreed not to sue each other anymore. Popsicle Company got
the rights to make cylindrical frozen things on sticks out
of syrups, water, ice, and shervets, and Bert got to
(14:15):
make rectangular frozen things on sticks out of ice creams
and frozen custards. This cut Citrus Products out of the
frozen pop game, so in nine seven it worked out
a deal to join Joe Loco in acting as Popsicles agents.
So we wound up with in the syruppy fruity frozen
cylinder camp, Joe Loco, Citrus Products and Popsicle Company working together,
(14:39):
and in the rectangular ice cream bar on stick camp
good Humor. These businesses spent the next several years making
their specified varieties of frozen treats. That is, until Popsicle
wanted to make its products creamier. You can imagine that
might cause a problem, and we're going to talk about
that after we have a brief word from a sponsor.
(15:01):
Harry Bert unfortunately did not get to see much of
his company's success. After its first round of legal issues
with Popsicle were resolved, he died in and left his
business to his wife, Cora. She sold basically everything related
to the Good Humor business except for the popsicle licensing,
to Midland Food Products Company, which changed its name to
(15:21):
Good Humor Corporation. Cora Bert actually later remarried and became
Corrobert Roller, and Good Humor was later sold to MJ. Mihan.
But then came another big change, and that was the
Great Depression. Because they were made of frozen waters and syrups,
popsicles were really pretty cheap to make. Good Humor Bars,
on the other hand, started with ice cream, which was
(15:43):
just more expensive. So Good Humor bars sold for ten
cents apiece and popsicles could go for half as much.
When financial times got tough, people who couldn't afford ten
cents for a Good Humor Bar might be able to
pay half as much for a popsicle. According to its
ad campaigns, more than two two hundred million popsicles were
sold in ninety one alone. Eventually, though, some of popsicles
(16:06):
licensees wanted to be able to sell some kind of
cheap competitor to good humor bars. Dairy prices were falling,
which made the idea more feasible feasible than it had
been when good humor bars are first developed. So in
the fall of nine one, Popsicle, Joe Loco, and Citrus
Products all got together and approached Good Humor with the
proposed revision to their ninety five agreement. This trio of
(16:30):
companies wanted to manufacture products that more resembled ice cream
but contained less than four point five percent butterfat, also
known as milk fat. Good Humor would retain the rights
to making products that contained more milk fat than that.
The Popsicle, Joe, Loco Citrus alliance thought it had a
(16:50):
strong case here, since the agreement specified that Popsicle could
make sherbet based products. Today, sherbets are made with about
one to three percent milk fat, and frozen dessert manufacturers
generally agree that sherbet's do include milk fat, but there
wasn't a legal definition or even a working industry definition
for what sherbet's actually were, and a lot of people
(17:13):
use the term synonymously with sorbet, which is a frozen
fruity dessert which generally includes no more than a trace
of dairy. So the Popsicle argument was, we can make
these dairy based bars based on our original licensing agreement,
because that says we can make frozen treats out of sherbet.
The Good Humors car counter argument was that's not what
(17:35):
Sherbet means, and we are the only ones who can
make dairy based ice cream bars on sticks. Of course,
Good Humor was also protecting its own interests here. It
was on the verge of launching its own less milk
fatty version of the Good Humor bar, called the Cheerio Bar,
which would cost five cents and be more like a
frozen ice milk bar than a frozen ice cream bar.
(17:56):
The result of this attempt at agreement was that Popsicle
just it ahead and gave its licensees permission to start
making a so called milk popsicle, regardless of how the
Good Humor company felt about it. The milk popsicle had
four point four eight percent butter butter fat, so it
was barely under the line that it had presented to
(18:17):
Good Humor as the upper threshold for products it was
interested in making. The milk popsicle also departed from the
cylindrical shape that had been outlined in those first Popsicle patents. Instead,
the milk popsicle was shaped for like a keystone. Unsurprisingly,
Good Humor took Popsicle to court, cleaming infringement on two fronts,
(18:38):
for sure making a popsicle with milk in it, and
then for making a rectangular popsicle. When it came to
presenting their evidence in court, the heart of the two
companies arguments was exactly how you define sure of it.
They pulled in definitions from dictionaries, they talked to ice
cream industry experts, and also thirty two different state regulators
on how you defined ice cream in different states. But
(19:02):
in the end, none of that really mattered, and Judge
John Jay neild based his ruling on something else entirely
with the two companies believed when they had signed their
agreement in the first place. He pointed out that Popsicle
had been making its products with water based mixtures, not
milk based mixtures, for six years with no problems. He
didn't get into the issue of the shape of the
(19:23):
bar at all. Judge Neilds issued an injunction against the
Milk Popsicle on ninety two if you read his court ruling.
His tone is basically, are you too serious? You've been
fine for six years and now you are deliberately doing
(19:44):
this thing that's obviously not what you've been doing. Go
to your room, like, couldn't we solve this problem six
years ago? So uh? The judge did not resolve the
differences between Good Humor and Popsicle, and both of them
appealed each for different reasons. Good Humor wanted the court
(20:04):
also to find that the milk popsicle was a rectangular
shape and that was a problem. Popsicle wanted the court
to find that their definition of sherbet was legitimate. I
love this, And the thing is, I know that when
you're talking about this on the scale of big business,
(20:25):
this is a very real and serious battle. But just
the idea of someone putting so much money and effort
and research into arguing over what sherbet is the lights
and and makes me giggle. The fact that they got
expert testimony from thirty two different states state regulators about
what sherbet is. That sounds like the most pedantic food
(20:46):
conversation ever in a court of law, which I actually
would love to read through the whole thing at some point,
but the Third Circuit Court of Appeals affirm Judge Neil's ruling,
still declining to weigh in on what sherbet is or
how the milk popsicle was shaped. However, before the court
had a chance to actually render this opinion, Good Humor
Im Popsicle signed a new agreement on April seventh of
(21:09):
nineteen thirty three. The two companies agreed to basically do
what they've been doing for six years, making popsicles out
of mostly water or syrup and making Good Humor bars
out of dairy misfortunately. I guess, depending on whose side
you're on, it was not a total loss for Popsicle.
Joe Loo suggested that Popsicle used this keystone shaped mold
(21:30):
to create a popsicle with two sticks in it, which
could be split and shared. That would let customers get
more of their gradt of their Great Depression dollars by
basically giving them two popsicles for everyone. And as a
side note, that two stick version went off the market
in the mid nineteen eighties, and it was replaced with
a one stick version of roughly the same size, as
(21:53):
hilariously reported in The New York Times, quote small children,
it seemed couldn't look fast enough in alternating sequences to
keep one or the other stick from dripping. This meant
that children were getting two popsicles rather than sharing them
with a friend or sibling, or they were just eating
them without breaking them apart. First, there's a similarly exasperated
sounding quote in this uh in this New York Times
(22:16):
article that talks to one of the popsicle executives, and
it's like, Hey, doesn't this mean you all aren't in
favor of sharing? Uh? And he has a similarly are
you kidding me? Kind of tone and talks about how,
like the weight of the two stick popsicle was this much,
but each of the single stick popsicles it's replacing it
is this much. So it's basically the same thing, just
(22:39):
already broken in half for you. So, in our last
extremely silly twist, M J. Mihans sold Good Humor to
the Thomas J. Lipton Company, a division of Unilever, in
nineteen sixty one. Then Unilever bought the popsicle brand in
(22:59):
nine and six years after the death of its inventor,
Frank Epperson. So, now these two former adversaries who went
to court repeatedly to decide who got to make what
out of frozen stuff on sticks are now both part
of the same business. Oh, popsicles and Delicious Nous break.
(23:21):
Maybe the popsicle people will be here today and I
can go have a popsicle after this. Well, and that's
another thing that I learned about researching this. If we're
talking about King of Pops, which is an Atlanta um
artisanal delicious pop creator, popsicle is still a trademark, so
that is why when you go to their website everything
(23:41):
is described as pops and not as popsicles. I didn't
know this. Apparently in a lever sometimes will aggressively defend
it's popsicle trademark. Well, and it is funny because I
think a lot of people it's kind of like that
Kleenex thing where people call all tissues Kleenex, where most
people call all frozen treats the six Dairy, specifically on
(24:04):
sticks popsicles, but that is a trademark name. Do you
also have a little bit of listener mail for us
to enjoy? I do, And it's it's slightly more serious
than this episode has been. Today. I felt like this
was like the summer break Frozen Treat Let's have class
outside episode. Uh this is from Sumner and Sumner says Hi,
(24:24):
Tracy and Holly. I've been listening to the podcast for
several years now, but haven't had a reason to write
in until now. I just finished listening to the album
Palace episode when you brought up the Tumbler post which
did not mentioned the album Palaces connection to slavery. It
reminded me of what a friends told me about a
recent trip to Portugal. This friend went there with a
free a few Brazilian friends. While touring cathedrals and palaces
(24:48):
and Portugal, he noticed a friction developed between the Brazilians
and the Portuguese tour god and the official tour narrative.
The buildings were symbols of the pride of the Portuguese
Empire for the brazil and they were symbols of colonial oppression.
The Brazilians would frequently ask the tour guide how the
building they were touring was funded and where the building
materials came from. In many cases, none of the tour
(25:10):
guides knew the exact details. But it made my friend
really change his perspective on the beautiful art he was seeing,
especially when looking at the masterpieces of European architecture and art,
we seem to gloss over their connections to colonialism and slavery.
With the masterpieces of the sixteenth and seventeenth century architecture
and art exist if many of their commissioners, nobles, royals,
(25:31):
merchants were not profiting from colonial trade. With the abundance
of gold and silver in Latin, American and Iberian art
from the so called Age of Discovery exist without the
conquest of the Americas and the influx of precious metals
from Mexico and Peru. Although I think you're both quite
right and saying that the Album Palace should be mentioned
in the context of the trans Atlantic slave trade, I
(25:52):
also think that we should take it upon ourselves to
rethink art and architecture we do not immediately associate with
colonialism and the slave trade. I want to thank you
both for giving me something engaging and educational to learn
when I'm commuting to and fround School. Thank you so much, Sumner.
That is a totally valid point, and it is a
point that there have been some really interesting books that
(26:14):
have come out lately that have kind of traced the
ongoing UH legacy of slavery and institutions that people haven't
necessarily associated with slavery. Um. There was one that came
out a couple of years ago that was called Ebony
and Ivy, which was about Ivy League colleges which are
almost exclusively in like New England and other northern parts
(26:39):
of the United States, and how they a lot of
them were initially built mostly on slave labor, which is
not really discussed and not really thought about in the
context of Ivy League schools very often. UM, which I
know there are people who wish we would shut up
about slavery, but I think until until it becomes second
(27:00):
nature to think about the legacies that that created these
great buildings and great works of art and things that
have lasted for hundreds of years that were really built
on exploiting the other other people, I think that will
be something that we will continue to talk about on
the podcast on a regular basis. So thank you again,
Um Sumner for writing to us about that. If you
(27:21):
would like to write to us about this or any
other subject, we're a history podcast that has stufworks dot com.
We're also on Facebook at facebook dot com slashness History,
and on Twitter at miss in History. Our tumbler is
missed in History dot tumbler dot com and Russell on
Pinterest at pinterest dot com slashmesth in history. We have
a spreadshirt store it isn't missed in History dot spreadshirt
dot com. We have some cool new stuff in there.
(27:44):
If you go to our spreadshirt store and there's something
that you wish we had, send us a note because
we have an awesome, awesome office manager named Mica who
is helping manage our store for us, and we can
send her a note and say to Mika, can we
get this, and often the answer yes and very promptly
we have that at the store to be great. Um. So,
(28:05):
if you would like to learn more about what we
talked about today, you can come to our parents company's website,
which is how stuff Works dot com and put the
word obsticle in the search bar. You will find a
pan of history's happiest accident. You can also come to
our website, which is missed in History dot com, and
you will find an archive of every episode we've ever done,
show notes to other cool stuff like that. You can
do all that and a whole lot more at how
(28:26):
stuff Works dot com or miss the Mystery dot com
for more on this, thousands of other topics. Is It
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Stuff You Missed in History Class News
Hosts And Creators
Holly Frey
Tracy Wilson
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