Florida Dairy Farmers Federation v. Borden Co., D-489

• Decision Date: 20 August 1963
• Docket Number: No. D-489,D-489
• Citation: 155 So.2d 699
• Parties: FLORIDA DAIRY FARMERS FEDERATION, an agricultural cooperative marketing association, Appellant, v. The BORDEN COMPANY, a corporation doing business as Borden's Dairy, Foremost Dairies, Inc., a corporation, and Doyle Conner, as Commissioner of Agriculture of the State of Florida, Appellees, Florida Dairy Products Association, Inc., a corporation not for profit, Intervening Appellee.
• Court: Florida District Court of Appeals

Page 699

155 So.2d 699

FLORIDA DAIRY FARMERS FEDERATION, an agricultural cooperative marketing association, Appellant, v. The BORDEN COMPANY, a corporation doing business as Borden's Dairy, Foremost Dairies, Inc., a corporation, and Doyle Conner, as Commissioner of Agriculture of the State of Florida, Appellees Florida Dairy Products Association, Inc., a corporation not for profit, Intervening Appellee.

No. D-489.

District Court of Appeal of Florida, First District.

Aug. 20, 1963.

Frank M. Scruby of Scruby & Yonge, Orange Park, for appellant.

Joseph C. Jacobs, Asst. Atty. Gen., Wayne K. Ramsay, Jacksonville, Mabry, Reaves, Carlton, Fields & Ward, and McClain, Cason & Turbiville, Tampa, for appellees.

RAWLS, Judge.

Florida Dairy Farmers Federation, an agricultural marketing cooperative association, who will be referred to as 'producers' sought to enjoin the Borden Company and Foremost Dairies, who will be referred to as 'distributors' from the marketing of certain dairy products. Prior to filing any defenses, the distributors moved for a summary final decree, and the producers countered with a similar motion. The chancellor granted the distributors' motion and entered a summary final decree in their favor. This appeal by the producers resulted.

We are not confronted with any factual disputes. Distributors are marketing dairy products in Florida labeled 'chocolate milk', 'chocolate milk drink', 'chocolate drink', 'buttermilk' and 'cultured buttermilk.' The producers contend that: (1) These milk products are made by a process of recombining or reconstructing in violation of Chapter 502, Florida Statutes, F.S.A. (2) If it is lawful for distributors to market recombined or reconstructed dairy products, same must be labeled as such. (3) It is unlawful to market 'chocolate drink', when made with milk products, since such a substance does not meet any definition contained in Chapter 502, Florida Statutes, F.S.A.

The chancellor in entering his final decree found that: 1. Administrative interpretation is entitled to substantial weight. 2. The prohibition against sale of recombined or reconstructed milk applies to 'whole milk'. 3. The standards of definitions (referred to in § 502.02) do not require strict conformity with the statutory definition, but relate only to the 'quality and wholesomeness' which the statute requires, and 4. The labeling as alleged did not violate § 502.03. We do not agree.

The administrative interpretation of long standing which was accorded considerable weight was to the effect that the making of milk products by a process of combining water with powdered milk or powdered skimmed milk and other substances was not in violation of the statutory prohibition against recombining or reconstructing milk. The general rule is that an administrative construction of a statute by the agency charged with the enforcement of the act and authorized to make reasonable rules and regulations, while not binding upon the courts, is accorded great persuasive force and efficacy, especially when established by long usage, provided the same is not repugnant ot the clear intent of the act or in conflict with the constitution. ¹

Section 502.01 is entitled 'Milk, Cream and Milk Products' and pertinent portions thereof which bear upon the issues are:

"Recombined or reconstructed milk' is defined to be a substance produced by recombining any milk product or milk products with other milk products or with any other substance and which conforms in any manner to the requirements of milk. It is unlawful clean, lacteal secretion obtained by milk in the state. * * *

"Milk' is defined to be whole, fresh, clean, lacteal secretion obtained by the complete milking of one or more healthy cows properly fed and kept * * *.

"Milk products' shall mean milk fat, cream, blend of milk and cream, skimmed milk, chocolate milk, chocolate milk drink, buttermilk, cultured buttermilk, evaporated milk (unsweetened), condensed milk (sweetened), condensed skimmed milk, condensed skimmed milk (sweetened), powdered whole milk, powdered skimmed milk, low-fat or non-fat milk, butter * * *.

"Skimmed milk' is defined to be milk from which practically all the butter fat has been removed.

"Chocolate milk' is defined to be whole or skimmed milk to which has been added in a sanitary manner a chocolate or cocoa syrup composed of wholesome ingredients and which contains not less than two per cent butterfat.

"Chocolate milk drink' is defined as skimmed milk to which has been added in a sanitary manner a chocolate or cocoa syrup composed of wholesome ingredients and which contains not more than one per cent butterfat.

"Buttermilk' is defined to be the product which remains when butter fat is removed from milk or cream, sweet or sour, in the process of churning. It contains not less than eight and five-tenths per cent of milk solids not fat.

"Cultured buttermilk' is defined to be the product obtained by souring skimmed, or partially skimmed milk, by means of a suitable culture of lactic bacteria and churning. It contains not less than eight and five-tenth per cent of milk solids not fat. * * *

"Powdered whole milk' is defined to be whole milk from which practically all the water has been removed, and which contains not less than twenty-six per cent of butter fat and not more than five per cent of moisture.

"Powdered skimmed milk' is defined to be skimmed milk from which practically all the water has been removed, and which contains not more than five...