Untitled Texas Attorney General Opinion ( 1950 )

665
THE A``OORNE;Y GENERAL
OF TEXAS
August 22, 1950
Hon. Oeo. W, Cox, l&D. opinion 150.v-1095.
State Health Officer
Department of Health Rep The legality of market-
Austin, Texas lngmilk inTexas under
a label bearing the word
Dear Sir: "fresh.'
Reference is made to your recent request which
reaUs in part as follows:
"Does Article 165-3, Section 4, Be-
vised Civil Statutes, Texas 1937 Supple-
ment prohibit the use of the word @freshs
so placed on a label for graUe A pasteur-
ized homogenized vitamin D milk that lt~
would likely be interpretedas ref+rdng
to the safety, sanitary quality or food
value of the contents of a container so
labelea?"
Section 4 of Article 165-3, VXS,, provides in
part:
'No milk or milk products sold, pro-
duced or offered for sale within this State
by any person, firm, assoctition or corpora-
tion shall carry a label, device or design
marked 'graUe A' or OgradeB' or any other
grade, statement, design or device, regard:
Ing the safety, sanitary quall'tyor food
value of the contents of the container
a is misleading or which does not con-
form to the definitionsand re uirements of
this Act.' (Underscoring ours. s
Black's Law mctionarg (3rd Ed. 1933) defines
the word "fresh" as 'immediate,recent, followingwith-
out any material interval."iWebster's International
mctionary (2nd Ed. 1938) defines "fresha as "having
its original qualities unlmpairti."
In City of Iiousvlllev. Rwlng Vol-Allmen Dairy
co., 105 S.W.2d 801,.802 (KyO Ct. of App. 1937), the
- . .
666
Hon. Geo. W. Cox, Mil.
D., page 2 (V-1095)
court stated:
*However,when the process (pas-
teurization)Is complete,we have nothing
left but milk, the same article an~¶raw
material that comes fresh from a healthy
cow by the hanas of a careful and clean
milker, after it had been properly straln-
0% and prepared for use by a first-class,
clean and tlUy housewife. The milk, af-
ter the pasteurizationis complete, con-
tains the same ingre&lentsas It had In it
when it came from the cow. It is only ma&e
clean food to be used. It has lost none of
Its palatable taste as when it came from a
healthy cow. Still, it contains all of the
ingredientsthat it formerly hacl."
The above case was cited in Rieck-XcJunkin
Dairy Co. v. School Dist, of Pittsburgh*66 A,2d 295,
299 (Pa0 Sup. 1949), and there the court statedn j
"Homogenizationbreaks .upglobules of
fat to prevent separation of cream from
milk and results in untform Distribution
of the fat content of the milk. o o 0 While
some of the attributesof milk are changed
by the process it Is not manufacturingin-
to a new and different article. It also con-
tinues to be ,soldas milk, PasteurizedanU'
homogenizedv&tan&n D milk s.nUpasteurized
chocolatemilk is milk with the addition, in
one instance, of vitamin D concentratean&
in the other, of chocolate and Sugar. . o .
These products are sold as milk; the changes
are essentiallyin the milk flavor, they are
still use% as beverages and are not new an8
different products in the sense of the defin-
ition of manufacture."
In view of the above definitionsar&interpre-
tations, it Is the opinion of this office that the use of
the word "fresh,' under the circumstances,is not mlsleacl-
ing within the meaning of the statute, since it does not
apply to and is not descriptiveof either the safet
Ftary quality or food value of the contents of-r--==
he con-
tainer.
Hon. Qeo. W. Cox, M.D., page 3 (v-1095)
667
Section 4 of Article 165-3 of Ver-
non's Civil Statutes does not prohibit
the use of the word "fresh' on labels of
Wade A pasteurizedhomogenizedvitamin
D milk; since this term does not refer to
either the safety, sanitary quality, or
food value of the contents of the con-
tainers so labeled.
APPROVEDI Yours very truly,
~.,.
3. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney. penera
Everett Hutchinson
Executive Assistant .
Charles D. Mathews a-/
First Assistant Assistant
LT:llmmw