Defiance Milk Products Co. v. Du Mond , 309 N.Y. 537 ( 1956 )

Desmond, J.

Plaintiff manufactures and sells, in 14%-ounce sealed and sterilized containers, evaporated skimmed milk, that is, cow’s milk from which there has been removed all the butterfat and so much of the other fluid content as to reduce the final volume to about 45% of original volume. Not only is it stipulated that this is a wholesome product with extensive public acceptance (plaintiff alone sells 7,000,000 or more cans a year), but we all know that it is recommended by physicians and dietitians and chosen by many consumers, because of its low calorie content. It is “ inferior ’ ’ to whole milk or evaporated whole milk, only in the same sense that milk is inferior to cream, or bread to cake, or hamburger to sirloin, in that it has different properties, and in that it carries a lower price tag because it can be more cheaply produced.

Nonetheless, plaintiff’s product cannot be sold to housewives in New York State. That result is accomplished by subdivision 2 of section 64 of the Agriculture and Markets Law, reading thus: “ No person shall sell or exchange, or offer or expose for sale, or exchange, any condensed or evaporated skimmed milk, except it be in containers or packages containing ten pounds avoirdupois net weight or more, which containers or packages shall be distinctly labeled, branded or marked in block letters not less than one-half inch in height, with the words ‘ Condensed Skimmed Milk ’ or ‘ Evaporated Skimmed Milk ’ ’ ’. The statute takes the form of mandating containers of minimum capacity, but the minimum quantity so specified is many times larger than could or would be sold and purchased in a retail food shop. Thus, the statute has the effect of prohibiting all sales at retail for household use. Plaintiff sues for an adjudication that this statute is unconstitutional. Both courts below have agreed with plaintiff and so do we. We see no rational ground for so arbitrary and unnecessary a prevention of the sale of a wholesome food product.

The applicable rules of law are well known. Every legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support for its provisions (Borden’s Co. v. Baldwin, 293 U. S. 194, 209, 210). If any state of facts, known or to be assumed, justify the law, the court’s power of inquiry end? (United States v. Carolene Products Co., 304 U. S. 144, 154). Questions as to wisdom, need or appropriateness are for the Legislature (Olsen v. Nebraska, 313 U. S. 236, 246). Courts strike down statutes only as a last resort (Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 555, affd. 344 U. S. 367) and only when unconstitutionality is shown beyond a reasonable doubt (Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 79; Matter of Fay, 291 N. Y. 198, 206, 207). But, for all that, due process demands that a law be not unreasonable or arbitrary and that it be reasonably related and applied to some actual and manifest evil (Matter of Jacobs, 98 N. Y. 98, 110; Fisher Co. v. Woods, 187 N. Y. 90; Nebbia v. New York, 291 U. S. 502). And even though a police power enactment may have been or may have seemed to be valid when made, later events or later-discovered facts may show it to be arbitrary and confiscatory (Abie State Bank v. Bryan, 282 U. S. 765, 772).

All those rules, read together, mean that the property of a citizen including his right to sell nondeleterious substances may not be taken from him without rhyme or reason. This record shows beyond dispute that a wholesome and useful food product has by statute been excluded from sale in this State. The ostensible legislative purpose was to see to it that customers did not get evaporated skimmed milk when they were trying to buy evaporated whole milk. But plaintiff’s labels plainly said: ‘ ‘ Evaporated Skimmed Milk ’ ’. If more distinctive marking was thought necessary, the Legislature could have demanded other kinds of labels or special sizes, shapes or colors of containers. Instead, it issued its fiat that these household-size quantities could not be sold at all. Such a prohibition was, as matter of law, not a reasonable way of dealing with such confusion or possibility of confusion as the legislators might have found to exist.

Appellant argues that plaintiff failed to carry the burden of proof. We do not agree. All plaintiff had to show was that no reasonable basis existed for an absolute ban against evaporated skimmed milk. Since no one has been able to discover any such basis, requisite proof of unconstitutionality was present. Appellant makes much of the testimony he produced showing that some New York State inspectors, shopping at various places in several States including New York, were sold evaporated skimmed milk instead of ‘ ‘ evaporated milk ’ ’ for which each had asked. That showed that individual shopkeepers were defrauding their own customers, but it had no tendency to prove that plaintiff’s plainly labeled product was so essentially confusing as to be punished by absolute exile. Both courts below properly found as fact that there was no fraud or deception by plaintiff.

Much of the argument on both sides here is based on conflicting interpretations of the United States Supreme Court’s opinions in the two Carolene Products cases (304 U. S. 144, supra, and 323 U. S. 18). Superficially, the Carolene situation is much like the present case, since in Carolene a statute was upheld which barred Carolene’s ‘ ‘ filled milk ’ ’ from interstate commerce. But the statute there involved was quite different from subdivision 2 of section 64 of our State Agriculture and Markets Law (supra). The Federal law (42 U. S. Stat. 1486, 1487; U. S. Code, tit. 21, ch. 3) forbade the shipment of “ filled milk ’ ’ but the latter term was defined to mean any milk ‘ ‘ whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or resemblance of milk ”. (Italics supplied.) Congress, when passing that Federal Filled Milk Act in 1923, had before it testimony that “ filled milk” (that is, milk with artificially added fats) was frequently or usually confused by customers with ordinary condensed milk, that shopkeepers increased this confusion by representing the product to be condensed or evaporated milk, and charged the same price for it as for condensed milk. Therefore, the Federal statute was upheld by the courts on the ground of widespread confusion and deception, lack of understanding by the public of the difference between the products, and active, systematic deception by vendors. No such proof is in this record. On the contrary, it. is incredible that as of this date shoppers do not know what is meant by “ condensed skimmed milk We must keep in mind that the Carolene statute was passed in 1923 and that the two Carolene cases were decided in 1938 and 1944, respectively. Congress had characterized “ filled milk ” as being “ injurious to health ” and “ a fraud upon the public ” (first Carolene opinion, 304 U. S. 152). Time has certainly disproved completely the first of those indictments. Ultimately, the court’s basis for the ban was “ deception ”, and fraudulent substitution ” in that the Carolene product was, in spite of proper labeling, regularly “ passed off as the whole milk product ” (second Carolene case, 323 U. S. 23, 31). There is nothing like that in this case.

Appellant suggests that respondent’s sales may have been in violation of a different statutory prohibition (Agriculture and Markets Law, § 64, subd. 3) which, in language quite like that of the statute passed on in the Carolene cases, forbids the sale of skimmed milk to which fats have been added “ so that the finished product shall be in imitation or semblance of condensed # * * mjQ]j ’ The testimony here shows that vegetable fats are added to plaintiff’s product to replace the vitamins drawn off in the removal of butterfat from the whole milk. But no issue as to subdivision 3 (as distinguished from subd. 2) was tendered to the court or tried. Plaintiff alleged (and no one disputed it) that the prohibition against its sales was based on subdivision 2, and the 10-pound container requirement of that subdivision.

The judgment should be affirmed, with costs.