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District Court of Appeal, Third District, California.

AVOSET, Inc., v. BROCK, Director of Agriculture, et al.

Div. 7311; Sac. 5794.

Decided: April 08, 1947

Fred N. Howser, Atty. Gen., and Walter L. Bowers, Asst. Atty. Gen., for appellants. Robinson & Cornell, of Merced, for respondent.

Upon petition for rehearing it is contended that the court overlooked a purported stipulation that ‘Avoset is equally as wholesome, nutritious, healthful, and sanitary when made from manufacturing cream as when Grade A is used.’

By reference to the record it appears the foregoing language was not stipulated to, but defendants did agree that whatever the Doctor Roadhouse report showed would be deemed to be the facts with relation to Avoset.

This court did not overlook the stipulation referred to, for we stated that: ‘It may be conceded that such products * * * may also be wholesome and free from deleterious or contaminated elements.’ But it is immaterial whether Avoset is equally as wholesome, nutritious, healthful or pure as when made from Grade A milk or cream. That fact alone would not render the challenged section unconstitutional. We have held that the act is valid in spite of the wholesomeness of the product. Avoset is not manufactured from Grade A milk or cream, as required by the act. That was the chief issue in the case.

The petition for rehearing is denied.


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