Posted on 25 Dec 2014 00:15
It is often erroneously reported that malted milk was invented for use at soda fountains, where it was used to make "malteds," or "malts," otherwise known as malted milk shakes. Malted milk was certainly adopted by soda fountains and used in shakes to such an extent that some establishments that served milk shakes were known as malt shops. However, it was not invented for this purpose.
Malted milk was first invented, so it is usually claimed, by William Horlick of Racine, Wisconsin, perhaps as early as 1870.
A patent was filed in 1883, and it was introduced to the market in 1887. It was a mixture of powdered whole milk, malted barley and wheat.
Curiously, this was probably the first whole milk powder that didn't go rancid very quickly, owing to being thoroughly mixed with the dry ingredients, which may have coated the fat globules and so protected them somewhat from oxidation. You will have noticed that powdered milk sold today is usually nonfat.
As we shall see, it is not at all clear that Horlick was the true and first inventor.
The true impetus behind the invention of malted milk seems to have been an effort to produce a soluble and shelf-stable powdered milk. Previous attempts had been made and most of them had been unsuccessful. One prior form, which was marketed as early as 1865, consisted of powdered milk mixed with a lot of cane sugar and a powdered baked wheat, which was simply a baked wheat "bread" that was crushed into powdered form. This meant that much of the starch was still 'raw' and the mixture, although it may have been more stable than previous products, had to be cooked before it was consumable.
Horlick, who marketed his malted milk with his brother James, an apothecary, was primarily trying to preserve the powdered milk as long as possible. The result, his malted milk, was shelf-stable and since malts of barley and wheat were thought to be highly nutritious and digestible food for humans, he attached claims to his product of its being a superior food. He intended the powder to be mixed in hot water and used as a supplemental food for infants and invalids. It was sold in drug stores, both as a powder and a tablet.
The vintage Horlick's Malted Milk advertisement below, from, 1928, was actually more like a full-page magazine article, typical of advertising in those days. It claims that Horlick's Malted Milk is a great way for children who have suffered from the flu or whooping cough to be brought back to full health and gain back precious body weight. It also claims that Horlicks is good for healthy children because it builds up their resistance.
Later, Horlick's Malted Milk was marketed as a 'complete food for all ages' that was also good for the digestion. It was even claimed to be a sleep-aid, if you drank some before bed.
Since the soda fountains were located in the drug stores that sold malted milk, soda fountains soon began experimenting with using the malted milk in shakes. They used the malted milk to make a syrup, which they added to drinks for flavoring. They also added malted milk to milk shakes, which gave the shakes a different and more robust flavor. It also effectively increased the fat content, making the shake more of a meal. Malteds were tasty and filling. The soda shops sold them at a price that reflected this, even though the addition of malted milk was not really very expensive. Malts became so popular that some shops, especially those not located in drug stores, began to be called Malt Shops.
Horlick's patent ran until 1900. Then, other companies started producing versions of malted milk. The two most well known were Bordens, who had marketed condensed milk and other products for years, and Carnation. However, the first company that took up malted milk was Elgin Milkine Company. Horlick's took exception to their use of the term "malted milk" for their product and filed suit to try to block them from using the name malted milk for their product. The court decided in favor of the defendant. Horlick's had used the term malted milk in registering its patent, which meant that both the formula AND the name, when the patent expired, passed to the public. The United States Court of Appeals for the Seventh Circut held not only this, but that it did not even matter whether the formula was produced according to the patent. In other words, anybody could make a product and call it malted milk, whether or not it was Horlick's version of malted milk. This decision was quickly taken advantage of by the aforementioned companies Borden and Carnation.
Horlick, in 1917, tried to renew their patent registration. However, the previous Elgin decision as to the name "malted milk" had thrown a wrench in the works. It has already been decided that malted milk could be used by anyone, after the original patent had ran out. When Horlick sought to renew the original patent for a period of 20 years, Borden stepped in and tried to cancel the registration. If the name malted milk was free an clear, as decided in court, said Borden, then to renew the registration would be to, in effect, tie up the name malted milk, the name used in the patent registration.
Soda Jerk in a Texas Soda Fountain is making a malted milkshake,
round about 1939. Borden's Malted milk in the background.
Horlick had been able to keep the name malted milk exclusive in many other countries, but in the United States, it was a done deal. The company didn't really try to argue the case. What they did do, was to ask for a sort of waiver to be added to the patent registration, that acknowledged the status of the term malted milk, but let the other components of the patent continue, including the letters "M.M." which Horlick had also patented in association with its product. They would file a disclaimer against their exclusive right to the term, but would not have to cancel the first patent and file a brand new patent with the name malted milk taken out.
This was important to the company since it was the American Patent that was used for all the other countries. Basically, if shown the American patent, the patent was granted in other countries without much question.
The patent office responded that there was no law or provision in place for a waiver or disclaimer of this sort to be added to an existing registration of a patent. There was an allowance for such disclaimers for patents pre-registration, but that law could not be thought to apply to registrations already granted. Because of this, the patent registration was cancelled.
The result of all of this was the malted milk wars, which were protracted and bitter. Borden, in 1913, filed suit against Horlick's Malted Milk Company on the grounds that Horlick had basically already lost its previous suit but had still engaged in a smear and harassment campaign of epic proportions against Borden. Horlick, said Borden, had plastered every conceivable publication with claims of its being the original and only true malted milk producer. Horlick worked tirelessly to turn druggists against any other malted milk product, and even went so far as to remove jars, ornamental receptacles labeled with Borden's name, and other items that had been loaned to stores by Borden for use in dispensing or selling its malted milk. Horlick admitted to the first part of this claim, at least.
However, the next part of the suit is more interesting, because it calls into doubt Horlicks claim of having been the true originator of malted milk. Borden claimed that in the earlier suit against the Elgin Milkine Company, Elgine had claimed that the process of malted milk had been discovered by Von Liebig, a German chemist, and that the same product was used by Countess Von Ebersberg.
In addition to this, Borden referred to testimony taken from Horlick in the Elgine suit, in which William Horlick claimed that he was not the inventor of the product. Another suit had been brought against Horlick in the British High Court of Justice, which had annulled the English version of Horlick's patent because the process for manufacturing malted milk had been obtained by Horlick from the complainant in that case. This patent was basically the same as the American patent.
In other words, Borden was claiming that Horlick's advertising campaign, which was quite extensive, that it was the true and original inventor of malted milk, was untrue and amounted to unfair competition in advertising.
This may seem like a frivolous claim, but this case was actually quite important. You might say that, regardless if Horlick had truly invented malted milk, he was the first to make it in the U.S. and had filed a patent. Therefore he had a right to say his was the original and true product. However, you must understand the implications of such claims. What the claims were saying, as people saw things in those days, and since such advertising claims were quite common, was that Horlick's Malted Milk was the original and genuine article, and all other products were imitations. In other words, he was implying that other brands of malted milk were not real malted milk and as such, may even have been harmful. Indeed, in those days, some such advertising claims may have been true. But in saying this, Horlick was essentially claiming that his formula and process for making malted milk was completely different and resulted in a different, and genuine, product, compared to the competitors.
Why is it unfair? Well to claim that a product is the 'first' is one thing. To claim that it is the 'original' is the same. But to claim or imply that it is the only genuine, is quite another. If the formula had been protected by patent, such claims would have been justified. Indeed, if other manufacturers were using the same formula, they would be infringing on Horlick's patent. But nobody had infringed on his patent. The patent had expired and thus the formula had passed to the public. This meant that anybody could access the formula. As well, there was the claim that there was only one 'true' way to make malted milk and that this malted milk processed superior qualities.
At least, these were all possible interpretations. The court did not agree that Horlicks had invaded the "property rights" of Borden, and felt that the question of who was genuine should be left up to the public. The court put this, of course, in a long and protracted bit of legalese. The court did agree that there was some proof that Horlick had made a claim that it's product was not only the original but the only genuine article. However, it was decided that there was not enough proof as to how extensive such efforts were and that "for lack of equity" it was not important enough to warrant and injunction against Horlick from making such claims. The suit was dismissed.
As you could guess, the malted milk wars became even more bitter and went on for years. Malted milk still sold well for decades after, and malted shakes had their biggest heyday in the 1920's. They were, of course, still offered up to modern times although not in their original, and no doubt more flavorful recipes.
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