Thayer v. Mich. Dep't of Agric.

• Citation: 323 Mich. 403,35 N.W.2d 360
• Decision Date: 03 January 1949
• Docket Number: No. 52.,52.
• Parties: THAYER et al. v. MICHIGAN DEPARTMENT OF AGRICULTURE et al.
• Court: Supreme Court of Michigan

323 Mich. 403

35 N.W.2d 360

THAYER et al.

v.MICHIGAN DEPARTMENT OF AGRICULTURE et al.

No. 52.

Supreme Court of Michigan.

Jan. 3, 1949.

Appeal from Circuit Court, Midland County; Ceorge W. Des Jardins, judge.

Suit by Lance Thayer, doing business as the Thayer Dairy, and others against the Michigan Department of Agriculture and others for declaration of rights and for an injunction. From a decree for plaintiffs, the defendants appeal.

Reversed.

Before the Entire Bench.

Edmund E. Shepherd, Sol. Gen., of Lansing, and Maurice M. Moule Asst. Att. Gen., for appellants.

Harold H. Bobier and Guy W. Selby, both of Flint, for appellees.

BUTZEL, Justice.

Plaintiffs, operatiors of dairies, filed a petition entitled bill of complaint for declaration of rights and for an injunction against the enforcement of Act No. 249, Pub. Acts 1947, Stat.Ann. 1947 Cum.Supp. § 12.605, and particularly section 5 (t) of the act, by the Michigan Department of Agriculture, its director and other employees and agents, defendants. The act in question amends section 5 of Act No. 169, Pub.Acts 1929, as amended, providing for the regulation of dairy products. Pertinent parts of the act as far as the instant case is concerned are as follows:

‘Sec. 1. The provisions of this act shall apply to all dairy products defined in this act, and the purpose of the act is declared to be to secure that wholesomeness and purity of and prevent fraud and deception in the production, handling, sale and disposition of such products. For the purpose of this act the following definitions shall apply:

‘(a) Milk is the whole, fresh, clean, lacteal secretion obtained by the complete milking of 1 or more healthy cows, properly fed and kept, excluding that obtained within 15 days before and 5 days after calving or such longer period as may be necessary to render the milk practically colostrum free. * * *

‘(h) Skimmed milk is milk from which substantially all of the milk fat has been removed. * * *

‘Sec. 5. No person, firm, association or corporation shall sell to the retail trade, expose for sale, deliver or have in his or its possession with intent to sell, for direct consumption or sell, expose for sale or deliver to a processing plant for resale for direct consumption any: * * *

‘(e) Milk which has had the ‘cream line’ increased by any artificial means or contains less butterfat than 3 per cent; * * *

‘(o) Flavored milk not made by adding a wholesome flavoring material to milk and not properly labelled to indicate its true flavor; * * *

‘(t) Milk or milk product of any type or kind containing chocolate or cocoa unless such milk or milk product has a butterfat content of not less than 3 per cent.’

Plaintiffs allege that they market a wholesome beverage made by the combination of milk or skimmed milk, with a low butterfat content, with chocolate so as to give it a chocolate flavor. The beverage is marketed not as chocolate milk but as ‘chocolate drink’ and other names. We shall refer to it as ‘chocolate drink,’ instead of chocolate milk. Plaintiffs contend that the act when applied so as to forbid the sale of the chocolate drink with a butterfat content of less than 3 per cent. is arbitrary and violates Art. II, § 16, of the Constitution of Michigan, in that it interferes with plaintiffs' right to do business, without due process of law.

Defendants do not claim that there is anything deleterious or harmful in this chocolate drink. In many respects it appears to be a nutritious food product and far superior to many of the soft drinks on the market. However, the State analyst's report shows that the chocolate drink as sold by the various dairies varies from .37 per cent. to 3.9 per cent. in butterfat.

Defendants shows that section 5 of the act, supra, establishes a reasonable and necessary standard to protect the public; that only the butterfat of milk contains vitamin ‘A’, recognized as a very important and essential part of the daily dietary needs of the public and especially of children; that the amount of vitamin ‘A’ in the milk varies directly with the butterfat content; that the chocolate drink is often sold as chocolate milk which must have a minimum butterfat content of 3 per cent. and that large quantities of the chocolate drink are sold in school lunchrooms; that the chocolate drink is sold in standard milk bottle which are often embossed with the name of the dairy and frequently advertised with dairy products. The testimony shows that the drink is often offered for sale, sold or mistaken for chocolate milk and is kept with the other milk products by dealers; that the general public does not, as a rule, differentiate between chocolate drink and chocolate milk, and, as a rule, the main label showing the difference is on the bottle cap. Similarity of the containers to other milk drinks is clearly shown by the exhibits as well as by photographs of such exhibits furnished in appellants' reply brief for the convenience of this court. Appellees concede that the product is sold in standard milk bottles or containers, the same as other milk products.

The record shows that a quart of milk with 3 per cent. butterfat contains from 1300 to 1400 units of vitamin ‘A’; with only 2 per cent. butterfat, it contains from 700 to 800 units of vitamin ‘A’; and with 1 per cent. butterfat, about 300 to 400 units of vitamin ‘A’; that an adult would require 5,000 such units daily and a child of six years of age about 2,000 units. Milk is a most nutritious, wholesome and necessary article of food for children. Milk when the butterfat is extracted or reduced to a minimum is virtually skimmed milk which is difficult to dispose of. It is profitable for the dairy operators to take milk from which a large proportion of the butterfat has been extracted and flavor it with chocolate or other flavoring substances and thus sell it. Children in particular, and frequently grownups, are very fond of sweetened chocolate drink and apt bo buy it instead of much more wholesome pure milk or chocolate milk with at least a 3 per cent. butterfat content. There is a good reason for the enactment of the law as a protection to the public.

The trial judge from the testimony found that vitamin ‘A’ was a definite substance in certain foods, and that the lack of it hinders growth and produces generally a condition of poor health; that it is particularly desirable in the growth and development of children; that the deception or the possibility of deception could be prevented by proper packaging and labeling; that chocolate drink was a much superior beverage to those soft drinks now so readily procurable that contain no milk. The testimony of one of the plaintiffs' experts was to the effect that he could not tell the difference between a chocolate drink that contained less then 3 per cent. and one that contained more; that he doubted whether one could tell by taste whether it contained 2 or 3 per cent; that one could not enter a cafeteria and tell the difference between a chocolate drink that contained 2 per cent. from one with a 3 per cent. butterfat content except by the label. We can readily see how the public in general and school children in particular would be unable to tell the difference if an expert can not do it. Plaintiffs, however, stated that the difference is shown by the bottle cap and in some cases by the label, or by both. We do not believe that young children would be apt to pay much, if any, attention to such bottle cap or label when the chocolate drink is sold alongside of regular milk or chocolate milk.

The trial judge in upholding plaintiffs' claim that the portions of the act assailed are unconstitutional, largely based his decision on the case of Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608, hereinafter discussed. Defendants have appealed from a decree in favor of plaintiffs.

There are only two questions in the case that require discussion. Does the act apply to a chocolate drink or set a standard for a chocolate drink? Is the act a proper exercise of the police power, or is it unreasonable and arbitrary so as to violate the due process clause of the State Constitution?

Plaintiffs contend that the act does not apply to chocolate drink and that it does not set a standard for chocolate drinks. While it is true that the act does not specifically define chocolate drink, as the prior acts did, the wording of section 5(t) of the act distinctly shows that its evident purpose was to include chocolate drinks in the standard set. It states:

‘Milk or milk product of any type on kind containing chocolate or cocoa unless such milk or milk or milk product has a butterfat content of not less than 3 per cent.’

Clearly the chocolate drink is a milk product even though plaintiffs do not remove as much butterfat in producing it as they do in processing skimmed milk. It is a distinction...