Opinion No. (1979)

Dear Honorable Murphy,

The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following question:

1. Is goat milk allowed in the Grade A market? 2. Can the State Board of Agriculture prohibit the sale of goatmilk products?

63 Ohio St. 1-1301 (1973), A and A-1 of the Public Health Code defines milk and goat milk as:

"A. Milk is hereby defined to be the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows, which contains not less than 8 1/4 percent milk solids-not-fat and not less than 3 1/4, percent milkfat. (Milkfat or butterfat is the fat of milk.)

"A-1. Goat milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of healthy goats. The word ``milk' shall be interpreted to include goat milk."

Goat milk is marketable as a Grade A product under 63 Ohio St. 1-1308 (1973) which states in part:

". . . Grade A raw goat milk may be sold in grocery stores or drug stores . . ."

Under this statute and 63 Ohio St. 1-1316 (1973), it is clear that the Legislature intended goat milk to be sold upon the Grade A market.

"To be marketable for human consumption, goat milk shall be produced in compliance with the sanitation standards, handled in compliance with all sanitation standards except those relating to heating, and when sold in stores, packaged in compliance with sanitation standards, all of which shall be subject to inspection, according to applicable provisions of Article 13, Title 63 of the Oklahoma Statutes."

Therefore, the answer to your first question is in the affirmative.

However, 2 Ohio St. 7-51 (1971), which defines milk for manufacturing purposes, defines milk as the lacteal secretion obtained from healthy cows.

Title 2, under which the duties of the Board of Agriculture of the State of Oklahoma are listed, allows that Board to grade only cows' milk, stating nothing about goats' milk. Title 63, the Public Health Code, which defines the Department of Health's duties and powers, allows goats' milk which has been graded as Grade A to be sold in certain markets, but gives them no provision for grading any milk. Therefore, in answer to your second question, the Board of Agriculture has no power to grade goats' milk.

It is, therefore, the official opinion of the Attorney General that 63O.S. 1-1301[63-1-1301] et seq. and 2 Ohio St. 7-51 (1971) are irreconcilableand the reconciliation is properly a legislative function.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

C. ELAINE ALEXANDER, ASSISTANT ATTORNEY GENERAL