Quality Food Products, Inc. v. Beard

RIVES, Circuit Judge

(concurring):

I heartily concur with Judge ALL-GOOD’s able opinion for the court, but, in the light of Judge JOHNSON’S vigorous dissenting opinion, I would add a few words.

First, on the facts, our dissenting brother says at one point that the evidence is “overwhelmingly clear” and at another that it is “without dispute” that the product sought to be marketed “is as wholesome and nutritious — if not more so — than fluid whole milk.” In my opinion the evidence does not permit any such an extreme finding.¹ I would not malign the product, and am happy that the evidence does go so far as to show that it contains nothing deleterious to health. On the other hand, in vitamin content the product may not be uniform. Mr. Fritz, the General Manager and Vice President of “Farmer’s Daughter,” which supplies the product to the plaintiff, testified that it advised the dairies to add vitamins. Without constant checking, the State Agriculture Department cannot know whether that advice has been followed as to any particular lot. Mr. Speizer of the plaintiff’s food testing laboratory (or that of “Farmer’s Daughter”) conceded that the product is to some extent subject to double pasteurization which, I understand, may destroy some food value. Dr. L. B. Roberts, chemist of the State food and drug laboratories, testified that there is nothing in the product harmful to health, but that his analysis of samples did not justify the claims of the promoters as to protein, lactone, calcium or calories. For example, the claim was that the product contained 20% fewer calories than natural whole milk, while his analysis showed the percentage to be about 5%.

Mrs. Leif Cannon, who holds a B.S. and M.A. degree from Auburn University, and is a qualified nutritions expert, testified that milk is most important to new-born babies and to growing children, that the low calorie content of this product made it undesirable for that important class of consumers, that vitamin K was not added to the product and it was deficient in vitamin C and in linolenic acid.

Our dissenting brother is equally positive on the question of possible confusion in the distribution of the product. To him “it is inconceivable that in this day and age the ‘ordinary consumer,’ who is experinced in examining and choosing from thousands of products, could or would be deceived by a product clearly labeled ‘IMITATION MILK’ in bold black letters an inch high.” That was not the testimony of Mrs. Cannon who was familiar with the purchasing habits of young mothers. She testified that the probability is that many of them will select the product from its place on the refrigeration shelf of the grocery store without even bothering to read the label. There is no testimony to justify a finding by this Court that the habits of consumers have changed so radically since Mr. Justice Homes said for the Supreme Court:

“It is true that so far as the question of fraud is concerned the label on the plaintiffs’ cans tells the truth — but the consumer in many cases never sees it.”

Hebe Co. v. Shaw, 1919, 248 U.S. 297, 303, 39 S.Ct. 125, 126, 63 L.Ed. 255.

Indeed there is no assurance that the product will always be marketed in the original container. If the price justifies, some restaurants and soda fountains may be expected to sell the product in the place of whole milk, just as oleomargarine is today distributed in lieu of butter. All of the witnesses agreed that the product looks like milk, tastes like milk, and that the ordinary consumer cannot tell the difference. The State has established elaborate and expensive machinery for assuring the purity and grade of natural milk. Will this court make it necessary for the State to furnish like administrative procedures for testing imitation milk?

The merits of this particular product have legal significance only insofar as they affect the comparison of the two classes, that is, imitation milk with whole milk and whether in their distribution consumers may probably be confused. Even the comparison of the clases need not be determined by this court with any exactness. The question is whether they are debatable to an extent that permits the legislature’s classification. As Mr. Justice Holmes commented in Hebe Co. v. Shaw, supra, 248 U.S. at 303-304, 39 S.Ct. at 126:

“If the character or effect of the article as intended to be used ‘be debatable, the legislature is entitled to its own judgment, and that judgment is not to be superseded by the verdict of a jury,’ or, we may add, by the personal opinion of judges, ‘upon the issue which the legislature has decided.’ Price v. [State of] Illinois, 238 U.S. 446, 452, 35 S.Ct. 892, 894, (59 L.Ed. 1400); Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 Sup.Ct. 370, 60 L.Ed. 679.” ²

Our dissenting brother criticizes the State authorities for their lack of interest in regulating the plaintiff’s product when he says:

“In the case now before this Court, the plaintiff offered (as it did to the state authorities before this case was instituted) to make whatever changes the state authorities desired in order to eliminate the possibility of the ordinary consumer’s being confused and deceived. The Alabama authorities did not see fit to make any suggested changes for this purpose; instead, they merely altogether prohibited the marketing of the product. Such a decision reflects the Alabama authorities were not interested in regulating, under the police power of the State of Alabama, plaintiff’s product. Thus, the opinion of the majority of this Court has the effect of placing a stamp of approval upon the use of a ‘filled milk’ statute to absolutely prohibit rather than to reasonably regulate.”

With deference, I submit that such criticism shows a total misconception of the very definite Alabama statute which reads as follows:

“§ 189. Adding or blending fat or oil with milk or cream. — No person himself or by his servant or agent shall for the purpose of sale or exchange, add any fat or oil other than milk fat to, or blend or compound the same with, any milk, cream or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, nor shall any person himself or by his servant or agent sell, any milk, cream or skimmed milk in any of the aforesaid forms to which has been added or with which has been blended or compounded any fat or oil other than milk fat.”

Code of Ala., Title 2, § 189. That statute does not merely regulate but, in clear and unmistakable language, it forbids or prohibits the sale of any milk “to which has been added or with which has been blended or compounded any fat or oil other than milk fat.” The plaintiff concedes, as it must, that its product comes within that class. There the case should end. Neither the State authorities nor the courts have any power or authority to re-write the statute so as to except the plaintiff’s product.

Our dissenting brother concedes that the Alabama “filled milk” statute is “constitutional on its face” but argues that in its “application” it must be held to except the plaintiff’s product because that product is in fact “as wholesome and nutritious as fluid whole milk” and in its distribution is not confusing to the consuming public. If the plaintiff attacked only the application of the statute to the facts in question, a three-judge court need not be convened. McGuire v. Sadler, 5th Cir. 1964, 337 F.2d 902, 906. The plaintiff recognized that the question is not one of “application” but goes to the validity of the statute on its face. The question is simply whether that statute is based upon an arbitrary and constitutionally impermissible classification.

Conceding arguendo that plaintiff’s product is both as wholesome and nutritious as natural whole milk and that its distribution is not confusing to the consuming public — though both of these matters are in fact debatable — it is nonetheless true that the Supreme Court has repeatedly held that a court has no power to construe or amend a plain and unambiguous statute, valid on its face, so as to except such an innocent product. In Purity Extract & Tonic Co. v. Lynch, 1912, 226 U.S. 192, 201, 204, 33 S.Ct. 44, 57 L.Ed. 184, Mr. Justice Hughes speaking for the Court said:

“It is also well established that, when

a State exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. * * *

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“The statute establishes its own category. The question in this court is whether the legislature had power to establish it. The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied simply because some innocent articles or transactions may be found within the proscribed class.”

Mr. Justice Brandéis, for the Court, elaborated upon this concept in Jacob Ruppert, Inc. v. Caffey, 1920, 251 U.S. 264, 284-299, 40 S.Ct. 141, 64 L.Ed. 260. Again in Queenside Hills Realty Co. v. Saxl, 1946, 328 U.S. 80, 83, 66 S.Ct. 850, 90 L.Ed. 1096, Mr. Justice Douglas speaking for the Court said:

“Yet a statute may be sustained though some of the objects affected by it may be wholly innocent. Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 204, 33 S.Ct. 44, 57 L.Ed. 184. The question of validity turns on the power of the legislature to deal with the prescribed class. That power plainly exists here.”

Compare Dean Milk Co. v. City of Madison, 1951, 340 U.S. 349, 354, 71 S.Ct. 295, 95 L.Ed. 329.³

One of the relevant circumstances which permits the inclusion of an innocent article within a prohibited class is the administrative difficulty of excluding the article from the class. United States v. Carolene Products Co., 1938, 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234. As there indicated, that consideration is peculiarly applicable in determining the validity of a “filled milk” statute.

The federal statute is couched in prohibitory language similar to that of the Alabama statute:

“ § 62. Same; manufacture, shipment, or delivery for shipment in interstate or foreign commerce prohibited

“It is declared that filled milk, as defined in section 61 of this title, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to manufacture within any Territory or possession, or within the District of Columbia, or to ship or deliver for shipment in interstate or foreign commerce, any filled milk.” 21 U.S.C.A.

Without deviation, the Supreme Court and the lower federal courts have upheld the constitutionality of the federal statute. The cases are collected in an annotation in 155 A.L.R. 1407 in support of the text: “The constitutionality of the Federal Filled Milk Act has been repeatedly upheld.” Similarly as to state statutes the annotation says: “Many states have adopted filled milk statutes similar to the Federal act, and in nearly all of the cases in which the question has arisen their constitutionality has been upheld.” 155 A.L.R. 1408. Supporting that text are collected federal cases and cases from the States of Florida, Kansas, Kentucky, Missouri, Ohio, Pennsylvania and Wisconsin. The note cites cases from only three states — Illinois, Michigan and Nebraska — as holding to the contrary, 155 A.L.R. 1411, though perhaps Arizona should be added. See 36A C.J.S. Food § 6(4), p. 803, n. 72. See also 35 Am.Jr. 2nd, Food § 52, pp. 847, 848. The undeniable fact is that the great weight of authority supports our majority decision. In my opinion, the plaintiff has failed to show that the Alabama filled milk statute is unconstitutional. I therefore concur in the judgment for the defendant.

1 . My discussion of the evidence represents simply my recollection as checked against my notes taken during the trial. Unfortunately, tlie parties have not seen fit to pay for having the testimony transseribed.

2 . See also 35 Am.Jur.2nd, Food § 6, p. 315, notes 1 and 2, and cases there cited.

3 . In other areas, such as those involving first amendment rights, less administrative leeway may be allowed. Shelton v. Tucker, 1960, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231.