AVOSET v. BROCK (1947)

The Director of Agriculture of California has appealed from a decree enjoining him and his agents from interfering with the manufacture and sale by plaintiff of a food product called ‘Avoset’ within the State of California. The product is produced for human consumption and sale in violation of Section 553.5 of the Agricultural Code, from manufacturing milk or cream which is not Grade ‘A’. It has not previously been sold within the State of California. The trial court found that Avoset was a pure, wholesome, healthful, harmless food product, free from bacteria and deleterious matter. The decree therefore determined that Section 553.5 is unreasonable, arbitrary, discriminatory and unconstitutional.

The plaintiff is a Delaware corporation maintaining its factory and principal place of business, since 1940, in Merced County, California, where it manufactures a milk or cream product called Avoset for sale as a supplement or substitute for fresh milk or cream. That product is made from sterilized manufacturing milk or cream as distinguished from market Grade A milk or cream, and is sold in hermetically sealed containers, in fluid form. It is composed of 99.8 per cent milk or cream to which two-tenths of one per cent of sodium alginate, a commercial vegetable stabilizer, is added. The product is not patented. It has been heretofore sold in large quantities outside of California, only. The label on the containers advertises that it is made of ‘real dairy cream’ with the addition of the vegetable stabilizer which gives it ‘extraordinary keeping quality and maintains its Meadow-Sweet flavor’; that ‘Avoset makes delicious dessert toppings,’ and ‘excellent homemade ice cream, and if thinned is perfect for coffee, cereals, desserts and fruits,’ and that it should be whipped and flavored ‘just the same as fresh whipping cream.’ The Vice-President testified that ‘The most obvious uses are in places that are not ordinarily daily served with fresh milk products.’

The only question on this appeal is the constitutionality of Section 553.5 of the Agricultural Code. It is conceded that Avoset conforms to the requirements of said section in its ingredients and method of manufacturing, except that it is not made from sterilized Grade A milk or cream; that it is composed of inferior grades of milk or cream, mingled with pure, treated vegetable extracts, sterilized, vacuum packed and processed so as to destroy bacteria and deleterious ingredients. It is made of manufacturing milk or cream, as distinguished from Grade A milk or cream, as defined by the Agricultural Code, to which two-tenths of one per cent of sodim alginate, a commercial vegetable stabilizer, is added.

After defining the terms ‘sterilized milk and sterilized cream’, Section 553.5 of the Agricultural Code provides that: ‘* * * Such product may contain harmless edible stabilizer not to exceed five-tenths of 1 per cent but shall otherwise conform to the standards and requirements established for milk or cream, as the case may be. Such milk or cream shall not be used in this State, nor sold for use in this State unless such sterilized milk or sterilized cream is made from Grade ‘A’ milk or Grade ‘A’ cream, and, in any area in which a price stabilization and marketing plan is in effect, unless the milk or cream used in such sterilized milk or sterilized cream is purchased and such sterilized milk or sterilized cream is sold at the prices established for fluid milk and fluid cream in that area.' (Italics added.)

Legislative regulation of the milk industry in California, extending over a period of more that 35 years, has wisely become increasingly strict with the apparent object of securing higher standsrds of purity and food property of milk and cream in their fluid state, for human consumption. Scientific methods have been adopted and caution has been taken to protect the public against impure, contaminated and unsanitary milk and cream in their fluid form. There appears to be good reason for distinguishing between milk and cream in their fluid state and the products therefrom in their solid forms. Such classifications do not appear to be unreasonable. Grade a milk is ‘market milk’ which conforms to the requirements specified in Section 484 of the Code. It must contain not less than 3.3 per cent of milk fat. (Sec. 476, Ag.Code.) Section 469 of that code prohibits the purchase or sale of milk or cream, as unlawful, ‘which does not meet the requirements and standards of market milk and market cream.’ ‘Milk which does not conform to the requirements of market milk is manufacturing milk.’ (Sec. 466(c), Ag.Code.) It is standardized on a basis of not less than 3 per cent of milk fat. (Sec. 466, Ag.Code.) ‘Cream which does not conform to the requirements of market cream is manufacturing cream.’ (Sec. 471(b), Ag.Code.) It is conceded that Avoset is made from manufacturing milk or cream, and not from Grade A milk or cream. It appears that the cost of producing Avoset from manufacturing milk or cream is considerably less than from market Grade A milk or cream. Many products of milk and cream, including butter and its substitutes, cheese, evaporated milk and cream, dried milk and buttermilk are separately classified and regulated by specific provisions of the code, and sometimes by reference to the standards adopted by the United States Agricultural Department. The Director of Agriculture is also authorized to adopt reasonable rules for regulating the milk industry and to enforce the statutes. (Sec. 735.2, Ag.Code.)

An injunction may not ordinarily issue to prevent the execution of a public statute, by officers of the law, for the public benefit. (Civil Code, sec. 3423, subd. 4; C.C.P., sec. 526, subd. 4.) When the statute is clearly unconstitutional, an injunction may issue at the instance of an aggrieved party. Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 65 P.2d 884, 109 A.L.R. 895. Every presumption is in favor of the constitutionality of an act of the legislature. It is the duty of courts to uphold a statute enacted under the police powers for the welfare of the public unless it clearly appears to be repugnant to the constitution. The burden is on one who challenges the constitutionality of an act to show that it is irreconcilable with the fundamental law. 5 Cal.Jur. 628, secs. 56–60; Rainey v. Michel, 6 Cal.2d 259, 272, 57 P.2d 932, 105 A.L.R. 148. It is the sole province of the legislature to determine the policy or necessity for enacting a statute. 5 Cal.Jur. 638, sec. 65; Butterworth v. Boyd, 12 Cal.2d 140, 146, 82 P.2d 434, 126 A.L.R. 838. The legislative purpose of regulating the production and distribution of fluid milk and cream and the products therefrom, is declared to be exercised under the police powers for the benefit of public health and welfare, to secure an adequate supply of milk and cream of proper chemical and physical content and to encourage efficient marketing of those important food commodities. (Secs. 735, 735.1, Ag.Code) In the section last cited it is said:

‘The purposes of this chapter are to:

‘(c) To authorize and enable the director to formulate stabilization and marketing plans * * *

‘(d) Enable the dairy industry with the aid of the State to correct existing evils, develop and maintain satisfactory marketing conditions, and bring about a reasonable amount of stability and prosperity in the production and marketing of fluid milk and fluid cream * * *.’ (Italics added.)

We are of the opinion the trial court erred in holding that the last sentence of Section 553.5 of the Agricultural Code is unconstitutional and void because it is unreasonable, arbitrary, discriminatory or in violation of the due process provisions of the Federal or State constitution, U.S.Const.Amend. 14; Const. art. 1, § 13, or for any other reason. We are of the opinion it is a valid exercise of the police powers of the legislature in classifying and regulating the sale of milk or cream or the products therefrom. It requires all products in fluid form made from sterilized milk or sterilized cream ‘[to be] sold for use in this State,’ to be made ‘from Grade ‘A’ milk or Grade ‘A’ cream.' That classification of the products of sterilized milk or cream is not arbitrary or unreasonable. There appears to be good reason for such classification, even though it may be conceded that such products made from an inferior quality of manufacturing milk or cream may also be wholesome and free from deleterious or contaminated elements. Manufacturing milk and cream are inferior grades or classes because they are not subject to the statutory requirements with respect to inspection, sanitation or contents which assure the purchasers and consumers of Grade A milk or cream of higher food properties and standards. It is an accepted fact that tuberculosis and other diseases may be incurred from drinking impure milk. It is evident that the higher the standard of production, the greater is the assurance of freedom from contamination and disease. It may be conceded that Avoset may be wholesome and free from deleterious matter. But the legislature had authority to classify fluid products made of sterilized milk or cream, out of precaution for the health and welfare of the public, so as to require them to be made only from the highest standard of Grade A milk or cream.

It is apparent that manufacturing milk or cream from which Avoset is made is not as safe to drink or use as Grade A milk or cream. Manufacturing milk is required by statute to contain a minimum of 3 per cent milk fat, while market milk must contain at least 3.3 per cent of milk fat. The former may contain 2,000,000 bacteria per cubic centimeter (Sec. 466(c), Ag.Code), while the latter may contain not more than 100,000 bacteria in the same quantity. And Grade A milk may contain not more than 75,000 bacteria per similar quantity, and it must be produced from inspected milk from dairies scoring at least 70% upon official inspection of the herds of cattle conducted every six months. Market cream shall conform to all of the standards set for market milk of the same grade except those relating to milk fat and solids not fat, and except that the maximum bacterial count for market cream shall not be more than three times asgreat as that for the corresponding grade of milk. (Sec. 489, Ag.Code.)

It is true that ice cream, sherbet and other similar products made from milk or cream are not required to be produced from market milk or cream. (Sec. 506, Ag. Code.) But such products are not sold in liquid form, as is Avoset, and they are specifically separately classified. Because ice cream may be manufactured from milk other than Grade A furnishes no reason for holding that Section 553.5 of the code is therefore an arbitrary and unreasonable classification. We may not hold that the general application of Section 553.5 of the code is arbitrary and unreasonable merely because certain other specifically classified products are exempt therefrom. The legislature has a wide discretion in adopting classifications to which the statute is made applicable, and such classifications should be upheld as valid in the absence of a clear affirmative showing that they are palpably artibrary and devoid of reason. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 702, 151 P. 398; 5 Cal.Jur. 832, sec. 193. Every intendment is in favor of the validity of the classification adopted. In State ex rel. Van Winkle v. Farmers Union Cooperative Creamery, 160 Or. 205, 84 P.2d 471, at page 478, quoting with approval from Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167, it is said: ‘When the subject lies within the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.’

Conceding that neither the product of Avoset nor the label which its containers have attached thereto are intended to deceive the public, notwithstanding the fact that the label states that Avoset is made of ‘real dairy cream’, and that it may be whipped and flavored ‘just the same as fresh whipping cream,’ which fails to notify the public that it is really made of manufacturing milk or cream and may infer that it is made only from market Grade A milk or cream, those conceded facts do not necessarily mean that the challenged provisions of Section 553.5 of the code arbitrary, unreasonable or in violation of the constitutional guaranty of due process.

In the statutory provisions regulating the production, handling and marketing of milk it is divided into two distinct classes, namely, market milk and manufacturing milk. (Secs. 466–495, Ag. Code.) The code also distinguishes between ‘fluid milk’ and the products thereof which are not in that form. (Sect. 735.3, Ag. Code.) It also recognizes the fact that market milk means fluid milk, which is not necessarily true with respect to manufacturing milk. Jersey Maid Milk Products Co., Inc. v. Brock, 13 Cal.2d 620, 639, 91 p.2d 577, 588. In the case last cited it is said: ‘By these provisions of the Agricultural Code, ‘fluid milk’ means the same as ‘market milk’ and includes fluid cream as well as fluid milk.'

The provisions of the Agricultural Code regulating the industry of milk and cream seek to enforce high standards of quality, excellence and food property, as well as purity and wholesomeness. In construing the section in question with respect to its alleged arbitrary or unreasonable provisions, that purpose of the legislature should be borne in mind. In 22 American Jurisprudence, at page 855, section 63, it is said in regard to the construction of milk statutes under such circumstances: ‘The regulations most frequently tested in the courts are those establishing an arbitrary standard of quality without regard to the question of adulteration or extraction, and prohibiting, under penalty, the sale of milk falling below the required standard. They have been sustained with practical unanimity, irrespective of whether the failure to come up to the standard is due to the fault of the cow, the dairy owner, or the dealer, and of the fact that the milk may be used without detriment by one who knows all about it and may be nutritious and, under certain circumstances, beneficial as an article of good.’

The fact that Section 553.5 of the code fixes the standard for the sale of sterilized milk or cream, or the products therefrom, in this State and requires them to conform to Grade A milk or cream is not unreasonable merely because the product therefrom is pure and wholesome. In supporting a Los Angeles milk ordinance which required a standard including the necessity of the presence of 3.5 per cent butter fat in the milk authorized to be sold, in spite of the fact that the State Milk Act (Stats. 1907, p. 265) required only 3 per cent of milk fat, the Supreme Court held in In re Hoffman, 155 Cal. 114, at page 119, 99 P. 517, 519, 132 Am.St.Rep. 75, that the Los Angeles act was not unreasonable or arbitrary even though the milk was in its natural state and pure. The court said: ‘Petitioner charges that this particular ordinance is unreasonable and in restraint of trade ine xacting too high a standard for the milk permitted to be sold. * * * Nor is it any objection to the validity of the ordinance that its regulatory provisions and the penalty for its violation differ from those of the state law.’

Many cases in various jurisdictions have held that the legislature has the right under its police powers to fix standards to which milk for sale must conform, and that such statutes are not an arbitrary exercise of authority or unreasonable merely because they require a higher per cent of milk fat or other properties or conditions, or for the reason that the products of lower standards may be pure, wholesome and free from deleterious matter. Anderson v. City of Tampa, 121 Fla. 670, 164 So. 546, 547; State v. Smyth, 14 R.I. 100, 51 Am.Rep. 344; People v. Cipperly, 37 Hun, N.Y., 319, 324; Id., 101 N.Y. 634, 4 N.E. 107; State v. Campbell, 64 N.H. 402, 13 A. 585, 10 Am.St.Rep. 419; City of St. Louis v. Liessing, 190 Mo. 464, 89 S.W. 611, 613, 1 L.R.A.,N.S., 918, 109 Am.St.Rep. 774, 4 Ann.Cas. 112; State v. Schlenker, 112 Iowa 642, 84 N.W. 698, 51 L.R.A. 347, 84 Am.St.Rep. 360; Commonwealth v. Wheeler, 205 Mass. 384, 91 N.E. 415, 137 Am.St.Rep. 456, 18 Ann.Cas. 319; Hebe Co. v. Calvert, D.C., 246 F. 711, 717; Hebe Co. v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 126, 63 L.Ed. 255. In the case last cited the Supreme Court of the United States sustained the judgment of the United States District Court of Ohio dismissing a complaint in equity brought to restrain prosecutions of manufacturers of a milk product called ‘Hebe’, which was sold contrary to the Milk Act of the State of Ohio. Hebe was made from skimmed milk condensed by evaporation to which 6 per cent of cocoanut oil was added. The label on the containers correctly stated the ingredients from which the product was made. It was conceded that Hebe was a wholesome, harmless product, but it did not conform to the provisions of the statute. The Ohio statute prohibited and penalized the manufacture or sale of ‘condensed milk unless it has been made from * * * unadulterated * * * milk, from which the cream has not been removed and in which the proportion of milk solids shall be the equivalent of 12 per cent of milk solids in crude milk, 25 per cent of such solids being fat, * * *.’ In upholding that statute, the late Mr. Justice Holmes said the statute declares that:

‘* * * You are not to make a certain article, whatever you call it except from certain materials—the object plainly being to secure the presence of the nutritious elements mentioned in the act, and to save the public from the fraudulent substitution of an inferior product that would be hard to detect. * * * We may assume that the product is improved by the addition, but the body of it still is condensed skimmed milk, and this improvement consists merely in making the cheaper and forbidden substance more like the dearer and better one and thus at the same time more available for a fraudulent substitute. It is true that so far as the question of fraud is concerned the lable on the plaintiffs' cans tells the truth—but the consumer in many cases never sees it. Moreover when the label tells the public to use Hebe for purposes to which condensed milk is applied and states of what Hebe is made, it more than half recognizes the plain fact that Hebe is nothing but condensed milk of a cheaper sort.

‘We are satisfied that the statute as construed by us is not invalidated by the Fourteenth Amendment. The purposes to secure a certain minimum of nutritive elements and to prevent fraud may be carried out int his way even though condensed skimmed milk and Hebe both should be admitted to be wholesome. The power of the legislature ‘is not to be denied simply because some innocent articles or transactions may be found within the proscribed class. * * *’ * * * 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.’ [Citing authorities.] The answer to the inquiry is that the provisions are of a kind familiar to legislation and often sustained and that it is impossible for this Court to say that they might not be believed to be necessary in order to accomplish the desired ends.'

The foregoing case from which we have quoted appears to be determinative of the very issues of the present suit. The principles involved in both cases are exactly the same. In each case it was conceded the manufactured product was wholesome, harmless and suitable for human consumption. In the Hebe case the statute prohibited the sale of such products unless they were made from unadulterated milk from which the cream had not been removed. It required the milk to contain 12% of milk solids, 25% of which solids should consist of milk fat. In the present Avoset case, the California statute prohibits the sale unless the products are made from sterilized Grade A milk or cream. The plaintiff in this case violated that statute by making Avoset from manufacturing milk or cream, which is inferior to Grade A milk or cream, for the reason that it contains less milk fat, and because it otherwise fails to conform to the high standards required for the production and sale of fluid Grade A milk or cream.

For the foregoing reasons we conclude that the challenged portion of Section 553.5 of the Agricultural Code is not arbitrary, unreasonable, discriminatory or in violation of the due process provisions guaranteed by the constitutions.

The judgment is reversed, and the trial court is directed to render judgment for the appellant, upholding the constitutionality of that portion of the statute in question.

BY THE COURT.