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June 22, 2019 27 mins

Today we revisit a fun episode from 2015. 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 (00:02):
Happy Saturday, everybody. Our network has another new podcast that
might appeal to our listeners. It is Food three sixty
with Mark Murphy, which combines history and food culture and
food science to take a really comprehensive look at the
way we eat and to go along with that theme
and the start of summer, today's classic returns to our
story of good humor versus popsicle and all the twists

(00:24):
and turns of the rivalry between those two frozen treats.
Stay tuned at the end of the show for a
peek into Food three sixty. Welcome to Stuff You Missed
in History Class, a production of I Heart Radios How
Stuff Works. Hello, and welcome to the podcast. I'm Trading

(00:48):
WI and I'm Holly Frying. So I researched this episode
in the middle of the summer, in the middle of
a week plus of 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,

(01:12):
thanks to various aspects of my apartment, ninety degrees outside
is really 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

(01:32):
the time that Popsicle and Good Humor could not stop
suing one another about who got to make which frozen
treats on sticks. 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

(01:52):
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 trees themselves have been around a lot longer
than this, and 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

(02:15):
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 Epperson mixed soda powder and
water and left it outside his Oakland, California home with

(02:36):
the wooden stir still in it overnight. When you 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 water on a stick and
behold it was delicious. And he named it the epsicle,

(02:58):
you know, like Epperson plus icicle. He was at this
point eleven, and like an eleven year old might be
expected to do, he made more of these, and he
started selling them to his neighbors because really wasn't much
more than a lemonade stand asque cobby until Everson was
a grown man who was making a living in real estate.
In nineteen twenty two, he made some of his frozen

(03:20):
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 pop.
In nineteen twenty three, Eperson teamed up with employees of
Low Movie Company and launched Popsicle Company. This company started

(03:42):
selling popsicles at Neptune Beach, which was a waterfront amusement
park near where Everson lived in California, and soon he
was licensing popsicles to be sold at other amusement parks
as well. On June eleventh, four he applied for a
patent for his invention, which was granted on August nineteenth
of that year. The patent is for a quote frozen Confectionery.

(04:05):
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, according to
the patent, quote small containers which maybe ordinary test tubes,

(04:26):
are charged with the liquid syrup from which the confection
is frozen, and the handlesticks are inserted there into and
pressed 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 it is
frozen solid within a few minutes. The test tube, confection,

(04:46):
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 patent also advises using a sapless, tasteless,
porous wood for the sticks so that the syrup freezes
into it and the stick doesn't just slide right out
when you pull it, which I know happens to me

(05:09):
sometimes when using classic popsicle not 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
without him. At about this same time, a business called
Citrus Product Company was also selling frozen flavored water pops.

(05:33):
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
about popsicles, But in the nineties this was actually a
selling points. Pops were sold as drinks that had been

(05:53):
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 the sirrup
comes out and your left with just a stick of ice,
because I have always deliberately not eaten them that way,

(06:14):
because that bothered me as a child, to have this
chunk of flavorless ice lift over. So in Joelo of
the eponymous Joel Corporation or Joe Loco, wanted to duplicate
the success of citrus products solid beverages. Joe Loco was
a major supplier to bakers and confectioners and it did

(06:35):
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 eventually became its sales agent. And that
is the business arrangement that was in place when Popsicle

(06:59):
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 lollipop in he figured out how
to make a chocolate coating that would stick to ice

(07:20):
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 Jr. Suggested using the sticks from the
the Jolly Boys suckers to make an ice cream bar
coated with chocolate on a stick. This became the Good

(07:41):
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 twenties until the nineteen seventies. Harry
Burt also made uniform molds and recipe standards so that

(08:03):
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 was called a Process of Making
Frozen Confections, and he applied for it on January thirtietho.

(08:25):
It was granted him on October nine, 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 heart quote which starts off soft or fluid, but
it has been hardened by refrigeration. Here's how it describes

(08:49):
this process. Quote. To this end, a 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 up rations incident to the manufacture of the confection,
as well as by the ultimate consumer when eating the
confection I eat, I put a stick in it. Both

(09:13):
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 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

(09:35):
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 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

(09:56):
of the container which may be covered temporarily, which allows
else the air to come in when you remove the bar,
making that step easier, and then it's frozen the rest
of 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

(10:18):
the product with your unsanitary, gross hands. They also both
have a combination of sticks and vessels and frozen deliciousness.
There 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

(10:38):
solid beverages, and Good Humor bars were desserts, and popsicles
were shaped basically like a cylinder, while Good Humor bars
were more 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

(11:01):
was which. I've imagining the person holding one of each
and going I can't tell. However, these two companies had
some legal bones to pick, and we're going to talk
about those after we have a brief sponsor break. So

(11:24):
although Good Humor and Topical 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 debuted at the very end of the
eighteen hundreds and waffle cones came on the scene. Just
after that, Eskimo Pies came out, and there were lots

(11:48):
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 just
scribed a process 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

(12:10):
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 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

(12:33):
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 couldn't agree on terms after repeated attempts,
and on August filed suit against Citrus Products claiming patent

(12:53):
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. Burt himself claimed that it was quote so
broad that it is impossible to make the suckers without
infringing the same, but in n at Bert's request, the

(13:16):
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 ice Cream Company in Texas. In all of
these companies had non standard spelling. Cold Cake Company was

(13:38):
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 the following year It's filed suit against the more companies,
including several Philadelphia businesses, and Horn ice Cream Company of

(13:58):
Maryland and Robert Mayor 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 Mby ice
Cream that developed the frozen sucker in the first place.
So at this point both Harry Burt and Popsicle Corporation had,

(14:20):
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
other when Bert filed suit against Popsical Corporation in the U. S.
District Court of Southern New York. That October, the two

(14:42):
companies reached a legal agreement together. In this agreement, they
agreed not to sue each other anymore. Popsical Company got
the rights to make cylindrical frozen things on sticks out
of syrups, water, ice, and shervets, and Bert got to
make rectangular frozen things on sticks out of ice creams
and frozen custards. This cut Citrus Products out of the

(15:03):
frozen pop game, so in ninety seven it worked out
a deal to join Joe Loco in acting as Popsicles agents.
So we wound up with in the syrupy fruity frozen
cylinder Camp Joe Loco Citrus Products and Popsicle Company working together,
and in the rectangular ice cream bar on stick Camp

(15:23):
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.

(15:48):
Harry Burke 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

(16:09):
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

(16:31):
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 hundred million popsicles were sold
in one alone. Eventually, though some of popsicles licensees wanted

(16:55):
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 ninety one, Popsicle, Joe, Loco, and Citrus Products all
got together and approached Good Humor with the proposed revision
to their nineteen twenty five agreement. This trio of companies

(17:19):
wanted to manufacture products that more resembled ice cream but
contained less than four point five percent butter fat, 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
strong case here, since the agreement specified that Popsicle could

(17:43):
make sherbet based products. Today, sherbets are made with about
one to three percent milk fat, and frozen dessert manufacturers
generally agree that sherbets do include milk fat. But in
ninety one, there wasn't a legal definition or even a
working industry definition for what sherbets actually were, and a
lot of people use the term synonymously with sorbet, which

(18:04):
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 sherbet means, and we are the

(18:25):
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. The result of this attempt at

(18:46):
agreement was that Popsicle just went 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 butterfly
butter fat, so it was barely under the line that
it had presented to Good Humor as the upper threshold

(19:06):
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, claiming infringement on two fronts, for sure making
a popsicle with milk in it, and then for making

(19:28):
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 in the end,

(19:51):
none of that really mattered, and Judged 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 bar at all.

(20:12):
Judge Neils issued an injunction against the Milk Popsicle on
ninety two. If you read his his court ruling, his
tone is basically, are you too serious? You've been fine
for six years and now you are deliberately doing this
thing that's obviously not what you've been doing. Go to

(20:36):
your room, like, didn'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 also to
find that the milk popsicle was a rectangular shape and

(20:56):
that was a problem. Popsicle wanted the court 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, this is a
very real and serious battle. But just the idea of

(21:17):
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 serbant is.
That sounds like the most pedantic food conversation ever in
a court of law, which I actually would love to

(21:38):
read through the whole thing at some point. But the
Third Circuit Court of Appeals affirm Judge Neild'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 Impopsicle
signed a new agreement on April seven of ninety three.
The two companies agreed to baseically do what they've been

(22:01):
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 or popsicle Joel suggested that Popsicle
used this keystone shaped mold to create a popsicle with
two sticks in it, which could be split and shared.

(22:22):
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 hilariously reported in the New
York Times quote small children it seemed couldn't look fast

(22:45):
enough in alternating sequences to keep one or the other
stick from dripping. Has 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 exasperate ated sounding quote in this in
this New York Times article that talks to one of

(23:06):
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 already broken in half for you.

(23:32):
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 nine six years after the death
of its inventor, Frank Epperson. So now these two former

(23:52):
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. Maybe the popsicle people will be here
today and I can go have a popsicle after this. Well,

(24:14):
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 is described as pops and not as popsicles. I
didn't know this. Apparently you know lever sometimes will aggressively

(24:37):
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 that are not dairy,
specifically on sticks popsicles, but that is a trademark name.

(25:01):
Thank you so much for joining us on this Saturday.
If you have heard an email address or a Facebook
you are l or something similar over the course of
today's episode, since it is from the archive that might
be out of date now, you can email us at
history podcast at how stuff Works dot com, and you
can find us all over social media at missed in
History and you can subscribe to our show on Apple podcasts,

(25:23):
Google podcast, the I Heart Radio app, and wherever else
you listen to podcasts. Stuff You Missed in History Class
is a production of I Heart Radios How Stuff Works.
For more podcasts for my Heart Radio, visit the I
Heart Radio app, Apple podcasts, or wherever you listen to
your favorite shows. I'm Mark Murphy. I'm a chef, restaurateur,

(25:48):
and all around curious guy with a true interest in
all things food. I've been cooking for over thirty years.
I've worked in and owned a number of restaurants, but
my experience is a judge on Food Networks Shop for
the past ten has really piqued my curiosity in the
food culture. I believe there's a story behind every meal,
a story behind every person who makes it, a story
behind each ingredient used, and I want to know everything

(26:10):
I can about it, and that's why we're here. My
new podcast, Food three sixty will take an all encompassing
look at the world of food, bringing history, science and
culture to the table. You'll get behind the scenes stories
from my friends in the industry and dig into why
we eat the way we do. I would say the
restaurants are like nucular particles. After five years, they start
losing their their mojo and you have to re energize them.

(26:31):
Being a restaurant worker, being a chef is the biggest
privilege of my life. To be able to do that
all over the world. It's hard, but it's also one
of the things that actually gets me up in the morning. Truthfully,
I'm able to separate, for the most part, my personal
likes and dislikes from if a dish is successful in
its preparation and judge if it has merit. And I

(26:53):
think a lot of it also comes from the chef's intention.
The most important thing for me is not my writing ego.
It's getting people to cook delicious food. Be sure to
subscribe to Food three sixty on the I Heart Radio app,
Apple podcast, or wherever you listen to your favorite shows.
H

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