Conner v. Cone

• Decision Date: 13 May 1970
• Docket Number: No. 38727,38727
• Citation: 235 So.2d 492
• Parties: Doyle CONNER, Commissioner of the Department of Agriculture of the State of Florida, and the Florida Department of Agriculture, Appellants, v. J. H. CONE and J. C. Cone d/b/a Cone's Dairy, and Quality Food Products, Inc., a Georgia corporation authorized to do business within the State of Florida, Appellees.
• Court: Florida Supreme Court

Page 492

235 So.2d 492

Doyle CONNER, Commissioner of the Department of Agriculture of the State of Florida, and the Florida Department of Agriculture, Appellants, v. J. H. CONE and J. C. Cone d/b/a Cone's Dairy, and Quality Food Products, Inc., a Georgia corporation authorized to do business within the State of Florida, Appellees.

No. 38727.

Supreme Court of Florida.

May 13, 1970.

Robert A. Chastain, Acting Chief Counsel, Florida Dept. of Agriculture and Consumer Services, and Joseph C. Jacobs of Ervin, Pennington, Varn & Jacobs, Tallahassee, for appellants.

E. Lee Redfern, Atlanta, Ga., and F. E. Steinmeyer, III, of Hopkins, Folsom & Steinmeyer, Tallahassee, for appellees.

CARLTON, Justice.

Appellees entered into a contract providing that Cone's Dairy would formulate and market in Florida various food products made according to formulae owned and controlled by Quality Food Products, Inc. The Florida Department of Agriculture approved the marketing of some of these products, but opposed the marketing of others on the ground that they qualified as filled milk products prohibited by F.S. § 502.151, F.S.A. ¹ Appellees filed complaint in Circuit Court, Leon County, seeking a Declaratory Decree construing their rights, duties and responsibilities under this statute.

On April 15, Circuit Court, the Honorable Hugh Taylor presiding, rendered a Decree which in effect held that F.S. § 502.151, F.S.A. was unconstitutional. This was followed on May 12, 1969, by Judge Taylor's Order in which it was:

'ORDERED AND ADJUDGED that the defendants, their agents, officers, servants, and employees are hereby permanently restrained and enjoined from prohibiting or interfering with the plaintiffs, their agents, officers, servants, employees, licensees and privies from manufacturing, selling, offering for sale or marketing plaintiffs' products within the State of Florida, or marketing plaintiffs' products within the State of Florida in such containers as have been previously approved for use by the defendants.'

Appellants Doyle Conner, Commissioner of Agriculture, and that Department of our

State government, entered a direct appeal in this Court. We affirm, with qualification, the decision rendered below.

This case is a sequel to Setzer v. Mayo, 150 Fla. 734, 9 So.2d 280 (1942), in which this Court upheld the constitutionality of this statute by vote of four to three. In Setzer, a food store operator selling 'Milnut' was charged with, and convicted of, violating Chapter 20496, Laws of Florida 1941, which defined and prohibited the manufacture, possession and sale of filled milk.

The term 'filled milk' meant then, as it does under the current statute, '(A) ny milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, Any fat or oil other than milk fat, whether in bulk or in containers, hermetically sealed or unsealed.' (Emphasis supplied.) Chapter 20496, § 2, declared: 'That 'filled milk' as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public.'

Experimentation with food substitutes spurred on by World War I revealed that vegetable fats could be substituted for milk fat (commonly known as butter fat) in milk, and that the resulting milk would be more economical yet still quite palatable. The vegetable fat most commonly utilized was coconut oil, and the end product, which contained all other natural ingredients of milk, was 'filled milk.' This substitution was much opposed by dairy interests and the scientific community. Milk fat was considered to be a very important food element in milk, rich in vitamins and other nutritious matter. Coconut oil lacked this status and it was demonstrated that the use of filled milk as a substitute for pure milk resulted in undernourishment and malnutrition and diseases incident thereto. Accordingly, the Legislatures of numerous states prohibited or severely regulated the sale of filled milk. In 1938 the United States Supreme Court, in United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234, upheld the constitutionality of a federal ban on interstate shipment of filled milk. The Court placed great reliance upon the fact that milk fat substitutes weakened the quality of milk as a food source, and that because of the identical taste and appearance of filled and pure milk, people could be sold or served one for the other without being aware of the difference, thus opening an avenue for fraud. The product specifically involved in the Carolene case was 'Milnut'.

In 1941 the Florida Legislature followed the lead of other states and enacted Chapter 20496, which prohibited filled milk with certain exceptions, and which declared it to be an injurious adulteration, the sale of which constituted fraud. Mr. Setzer, a Jacksonville food store operator selling 'Milnut', was convicted of violating Chapter 20496, and he appealed here. We recognized in the Setzer case, Supra, that the Legislature had the power to prescribe a standard for dairy products in the interest of public health and the general welfare and that filled milk was generally considered to be injurious to health. We also recognized, however, that the Legislature's power in this regard was not absolute. Any prohibition under the police power must have some relation to the protection of the health, morals, safety or welfare of the public, and if no relation can be shown which is reasonable, then such prohibition must be taken as arbitrary and capricious, the effect of which is to deprive one of property without due process, or to deprive one of equal protection under law.

Thus we said in Setzer that if it could be shown that a substitute for milk fat rendered milk no less wholesome and useful, then the reason for prohibition would be dissipated and 'Milnut' could not be prohibited even though classed as filled milk. Regarding this point, Justice Terrell, writing for the majority, said, 150 Fla. 740, 741, 9 So.2d 282, 283:

'The statute in question proscribes all fats and oils but milk fat as a substitute for butter fat. And while we uphold the validity of the Act, we are conscious of the rule that a valid statute may be assailed by proof of facts showing that as applied to a particular article, it is without support in reason because the article, although within the proscribed class, is so different from others in the same class as to be without the reason for the prohibition, the effect of the proof depending on the circumstances, of the case. United States v. Carolene Products Co., supra, and cases cited.

'This opinion is planted squarely on the doctrine of the last cited case and the case of Carolene Products Co. v. Wallace et al., D.C., 27 F.Supp. 110, affirmed without opinion in 308 U.S. 506, 60 S.Ct. 113, 84 L.Ed. 433, and as we interpret these cases, it is not sufficient to prove that cotton seed oil and other substitutes for butter fat are wholesome and nutritious, if it is shown that in addition to being wholesome and nutritious, they are rich in vitamins that are equal to or superior to those found in butter fat and will perform the same function as food elements, they should be classed in the same category and not banned by the Act. If, however, there is a well founded division of opinion, the judgment of the legislature will not be overthrown; the fact that an article is pure and not injurious is not material in a judicial inquiry. The question here does not challenge the purity and wholesomeness of filled milk. It merely bans it as a substitute for pure milk.

'In fine, food value and the place of vitamins in the food is a subject that is still open for added knowledge. Well recognized food concepts of yesterday are being discarded because of scientific discovery. If therefore relators can show that notwithstanding their product is produced by substituting cotton seed oil or some other substitute for butter fat and vitamins it is wholesome and nutritious and that it is equal to or superior to whole milk as a food, the test prescribed in the last two cited cases is met and their product relieved from condemnation by the Act.'

Our final holding in Setzer was that while the filled milk prohibition itself was constitutional, the trial judge had erred in not allowing the defendants opportunity to submit evidence whether or not 'Milnut' was equal to, or superior to, pure milk since 'Milnut' as sold in Florida contained cotton seed oil, not coconut oil, as the milk fat substitute. If this could be demonstrated, then the product could not be prohibited since it would be neither injurious nor fraudulent.

Three members of the Setzer panel dissented. They were of the view that 'Milnut' had already been shown to meet the above test. They also held the view that filled milk generally, where properly regulated, was wholesome, nutritious and marketed free of fraud, and that the Legislature could not prohibit its sale merely because it was a substitute for milk containing milk fat.

In 1967 the Legislature revised and amended statutory Chapter 502, relating to milk and milk products. The filled milk prohibition initially enacted as Chapter 20496, and carried through to 1967, appeared in the revised Chapter as F.S. § 502.151, F.S.A. The Legislature again specifically declared that "Filled milk' as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public.'

Concurrently, and crucial to this decision, the Legislature enacted for the first time F.S. § 502.161, F.S.A., entitled 'Imitation Milk'. This statute approved possession, manufacture and sale, by implication, of Any synthetic food product 'which has the semblance of milk or milk product or which has in its name the word 'milk' or the name of a milk product but which does not come within...