Quality Food Products, Inc. v. Beard , 286 F. Supp. 351 ( 1968 )

ALLGOOD, District Judge.

This is an action by Quality Food Products, Inc., for a declaratory judgment that Title 2, Section 189, Code of Alabama, 1940, is violative of the Constitution of the United States. Injunctive relief is also sought to restrain enforcement of this statute by the defendant State official, the Commissioner of Agriculture and Industries; therefore, a three-judge court heard the case pursuant to Title 28, U.S.C.A. Sections 2281 and 2284.

Plaintiff alleges that it was taking steps preparatory to sale, through local outlets in Alabama, of its milk product or imitation milk which consists of a mixture of vegetable oil, dried or powdered milk and other ingredients under its trade name “Farmer’s Daughter Imitation Milk”, and that the defendant State official advised him that the statute here involved prohibits the sale of this milk product.

The challenged statute forbids for sale purposes the adding of any “fat or oil other than milk fat to, or blend or compound the same with any milk, cream or skimmed milk” ¹ Similar statutes, known as “filled milk” laws, have been enacted by other states and also by the Congress of the United States.

The plaintiff’s testimony was to the effect that its product, a fresh fluid imitation milk, is wholesome, healthful, and contained the nutritional qualities of natural milk. The defendant offered testimony to contradict the fact that the product is as nutritional as natural milk, and that some of plaintiff’s claims concerning the food or nutritional value of its product are deceptive and misleading. The testimony also disclosed that plaintiff’s product is, by its taste, appearance and texture, indistinguishable from natural milk; that the consumer would not be able to recognize the difference; that defendant’s cartons are the same type, size and shape as cartons in which natural milk is sold and that these cartons contained deceptive and misleading information. The plaintiff offered testimony together with exhibits that other products containing vegetable oil and milk solids are being sold in Alabama, but the defendant’s testimony was to the effect that these products are entirely different from the plaintiff’s product as such products are not milk or dairy products and are easily distinguishable from whole milk.

Plaintiff contends that the statute in question is violative of the Constitution of the United States and, specifically, that it violates the Fifth and Fourteenth Amendments thereof and that the defendant is applying the provisions of the Alabama statute in an unconstitutional or discriminatory manner in violation of the equal protection clause of the Fourteenth Amendment because of permitting the sale of other products that contain some of the same ingredients.

Authorities cited by counsel disclose that the constitutionality of so-called “filled milk” statutes enacted by other states and by the Congress of the United States has been the subject of extensive litigation involving their constitutional validity. The validity of the Federal Filled Milk Statute has several times been upheld by the Federal courts, including the Supreme Court of the United States. A number of State Supreme Courts have upheld the constitutional validity of State filled milk laws while in other states such laws have been declared invalid.

In each case where the Supreme Court of the United States and lower Federal courts have ruled upon the validity of a State statute of this type, the court has upheld the statute as a valid enactment within the authority of the police power of the State. Hebe Co. v. Shaw, 248 U. S. 297, 39 S.Ct. 125, 63 L.Ed. 255; Sage Stores Company v. State of Kansas ex rel. Mitchell, 323 U.S. 32, 65 S.Ct. 9, 89 L.Ed. 25; also, United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234, where the Supreme Court approved its earlier ruling in Hebe Co. v. Shaw, supra.

Plaintiff’s contention that the Alabama filled milk law is violative of the Fourteenth Amendment of the Constitution of the United States is predicated upon its being violative of the due process clause and the equal protection clause. Its argument regarding the due process clause is based upon complete prohibition by the statute of the sale of filled milk. This contention has been rejected by the United States Supreme Court in Hebe Co. v. Shaw, supra, as the court declared: “We are satisfied that the statute * * * is not invalidated by the Fourteenth Amendment.” Later in United States v. Carolene Products Company, supra, the Supreme Court in deciding that the Federal filled milk statute did not violate the due process clause of the Fifth Amendment in commenting upon its earlier ruling in Hebe Co. v. Shaw, stated, “We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned * * To like effect is a decision of the Supreme Court of the United States in Sage Stores Company v. State of Kansas, ex rel. Mitchell, supra, in upholding the validity of the Kansas filled milk law.

The judicial decisions disclose that one of the reasons for enactment of filled milk laws is to prevent confusion, deception, substitution and possible fraud upon the consuming public in the sale of this substitute product because of its likeness to natural milk. This reason alone has been declared sufficient to sustain a complete prohibition. In Carolene Products Company v. United States, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15, and in Sage Stores Company v. State of Kansas ex rel. Mitchell, supra, the Supreme Court concluded that there was a rational basis for enactment of the filled milk laws involved in those cases because the products are indistinguisable by the ordinary consumer from natural milk and regardless of intent, “the evil of confusion remains.” In Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, a California statute was upheld which completely prohibited the sale of certain varieties of avocados grown in another State. The court stated: “* * * neither logic nor precedent invites any distinction between State regulations designed to keep unhealthful commodities off the grocer’s shelves, and those designed to prevent the deception of consumers. * * * Nothing appearing in the record before us affords any ground for departure * * * from our consistent refusal to draw such a distinction.” In the present case the imitation milk was to be distributed by a regular milk processing firm or dairy concern in the same type of container or carton used for milk that could easily confuse a purchaser in a self-service type store regardless of the label or writing on the container. “It is true that so far as the question of fraud is concerned the label of plaintiffs’ cans tells the truth — but the consumer in many cases never sees it.” Hebe Co. v. Shaw, supra, 248 U.S. at page 303, 39 S.Ct. at page 126.

In support of its contention that the Alabama statute is being applied to the plaintiff’s imitation or substitute milk product in an unconstitutional manner in violation of the equal protection clause of the Fourteenth Amendment, the plaintiff introduced in evidence several brand name products which included “Metrecal”, “Segó”, “Nutrament”, “Enfamil”, and several other products denoted by their brand name, all of which appear to be special dietary food or beverage products. Plaintiff points out that these products contain vegetable oils and non-fat milk solids, but these products are not dairy or milk products nor are they represented as such as they are beverages, food or drinks not in the category of a dairy product. These products contain other ingredients that make them markedly different and readily distinguishable from the plaintiff’s imitation milk product. Plaintiff likewise asserts that for Alabama to authorize by special statute the sale of oleomargarine, an imitation butter, and mellorine, an imitation for ice cream, constitutes a discrimination violative of the equal protection clause.

Defendant’s counsel in their brief call attention to the intent and meaning of the Alabama Dairy Products Law Article 13 (Sections 186-207), Title 2 of the Code of Alabama, in which the Alabama filled milk law appears, and other sections of the Alabama Code that govern the sale of foods, drinks and beverages which, according to their contention, govern the sale of products other than milk and dairy products and the construction and application of these statutes in relation to each other. We refrain from construing the intent, meaning and application of these statutes. We think, however, that it will suffice to point out that the plaintiff’s contention involves a matter of legislative classification. As was held in Sage Stores Company v. State of Kansas ex rel. Mitchell, supra, in response to a similar contention that Kansas permitted the sale of skimmed milk, the court rules that it was “a matter of classification and the power of the legislature to classify is as broad as its power to prohibit. A violation of the Fourteenth Amendment in either case would depend upon whether there is any rational basis for the action by the legislature.” The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard; also, one who assails the classification has the burden of showing that it is arbitrary and does not rest upon any reasonable basis. Lindsley v. Natural Carbonic Gas Company, 220 U.S. 61, 31 S. Ct. 337, 55 L.Ed. 369.

Plaintiff’s contention that to authorize the sale of oleomargarine and mellorine is an unconstitutional discrimination against its product was rejected by the United States Supreme Court in United States v. Carolene Products Company, supra. In that case it was argued that the Federal filled milk law unconstitutionally discriminated against plaintiff’s product because it did not prohibit the sale of oleomargarine or other butter substitutes. In denying relief the court said, 304 U.S. at page 151, 58 S.Ct. at page 783:

“The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their legislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v. [State of] South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 57 L.Ed. 164; Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342, 59 L.Ed. 628; Hall v. Geiger-Jones Co., 242 U.S. 539, 556, 37 S.Ct. 217, 61 L.Ed. 480; Farmers’ & Merchants’ Bank of Monroe, N. C. v. Federal Reserve Bank, 262 U.S. 649, 661, 43 S.Ct. 651, 67 L.Ed. 1157.”

Furthermore, because of the obvious difference between plaintiff’s product — an imitation or substitute for fresh fluid whole milk — and the several products pointed to by plaintiff, we hold that there is no unconstitutional discrimination involved or no discriminatory application of the Alabama filled milk law.

Our only choice in reaching a final decision in this case is to follow the cases previously decided by the United States Supreme Court which are contrary to each contention made by the plaintiff or to adopt the reasoning of some of the State court decisions which express a contrary view. After considering plaintiff’s contentions in connection with evidence before us, we see no reason to depart from the applicable law as heretofore decided by the Supreme Court of the United States. The burden of establishing the unconstitutionality of a statute is upon him who assails it, and we are of the opinion that the plaintiff in this ease has not sustained such a burden to the extent that the statute here involved should be struck down. Accordingly, the relief sought by plaintiff must be denied.

It is, therefore, ordered, adjudged and decreed that the relief requested by the plaintiff be, and the same is hereby denied. Costs are taxed against the plaintiff.

1 . Title 2, § 189, Code of Alabama: “Adding or Mending 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 lias been added or with which has been blended or compounded any fat or oil other than milk fat.”