Lever Bros. Co. v. Erbe

• Decision Date: 14 January 1958
• Docket Number: No. 49237,49237
• Parties: LEVER BROTHERS COMPANY, a Corporation, and Mrs. Clark's Foods, Inc., a Corporation, Appellants, v. Norman A. ERBE, Attorney General of Iowa, Clyde Spry, Secretary of Agriculture of Iowa, L. B. Llddy, Chief, Dairy and Food Division, Department of Agriculture of Iowa, Ray Hanrahan, County Attorney of Polk County, Charles King, County Attorney of Marshall County, Martin D. Leir, County Attorney of Scott County, Arthur H. Johnson, County Attorney of Webster County, and Donald E. O'Brien, County Attorney of Woodbury County, Appellees.
• Court: Iowa Supreme Court

Page 469

87 N.W.2d 469

249 Iowa 454

LEVER BROTHERS COMPANY, a Corporation, and Mrs. Clark's Foods, Inc., a Corporation, Appellants, v. Norman A. ERBE, Attorney General of Iowa, Clyde Spry, Secretary of Agriculture of Iowa, L. B. Llddy, Chief, Dairy and Food Division, Department of Agriculture of Iowa, Ray Hanrahan, County Attorney of Polk County, Charles King, County Attorney of Marshall County, Martin D. Leir, County Attorney of Scott County, Arthur H. Johnson, County Attorney of Webster County, and Donald E. O'Brien, County Attorney of Woodbury County, Appellees.

No. 49237.

Supreme Court of Iowa.

Jan. 14, 1958.

Brody, Parker, Miller, Roberts & Thoma, Des Moines, for appellants.

Norman A. Erbe, Atty. Gen., Don C. Swanson and Freeman H. Forrest, Asst. Attys. Gen., for appellees.

GARFIELD, Justice.

The vital question we find it necessary to decide is whether Iowa law prohibits the sale of oleomargarine (herein also called margarine) containing about two per cent butterfat. We must disagree with the trial court's holding there is such prohibition.

Plaintiff Lever Bros. Co. manufactures Imperial margarine. Plaintiff Mrs. Clark's Foods, Inc., an Iowa corporation, distributes it to about 1100 retailers in Iowa. November 20, 1956, the state department of agriculture wrote Lever Bros. that Imperial margarine contained butter oil; under section 190.1, subsection 2, Code 1954, I.C.A., margarine is defined as 'quoting this statute, hereinafter set out); it is therefore evident Imperial violates our laws and 'we request that immediately * * * you notify all distributors in Iowa the product does not meet the requirements of our law and its sale after December 1 will place wholesalers and retailers in a very vulnerable position.' January 31, 1957, an assistant state attorney general gave the department of agriculture an opinion that the definition in 'section 190.1(2) requires that margarines not contain milk fats.'

This action was commenced February 1. The petition alleges, the answer admits, and it was stipulated upon the trial that the determination of the department of agriculture, above referred to, would prohibit the sale of Imperial margarine in Iowa for the sole reason its contents include butter. It was also stipulated the department of agriculture interprets section 190.1(2) as prohibiting sale of margarine made with butter, cream or milk but as permitting sale of margarine made with skim, or dry skim, milk.

We accept the statement at the outset of defendants' brief that the action involves interpretation of section 190.1(2) and other related statutes dealing with adulteration, and the issue is whether Imperial margarine in its present form complies with the definition and standard for margarine set out in 190.1(2). The significant fact as to Imperial's contents is that they include, according to defendants' chemist, in the neighborhood of two per cent butterfat as previously indicated.

We quote pertinent parts of the statutes set out in the assistant attorney general's opinion above referred to:

'190.1 Definitions and standards. For the purpose of this chapter the following definitions and standards of food are established. * * *

'2. Oleomargarine. Oleo, oleomargarine or margarine includes all substances, mixtures and compounds known as oleo, oleomargarine or margarine, or all substances, mixtures and compounds which have a consistence similar to that of butter and which contain any edible oils or fats other than milk fat if made in imitation or semblance of butter.'

'190.3 Food adulterations. For the purposes of this chapter any food shall to be deemed adulterated: * * *

'10. If it does not conform to the standards established by law or by the department (of agriculture).'

'191.6 Standards for oleomargarine. The department * * * may prescribe and establish standards for * * * oleomargarine * * * and may adopt the standards set up by now existing regulations of the federal security administration * * * as found in 1949, Code of Federal Regulations, Title 21, Part 45, section 45.0, or any amendments thereto. Any standards so established shall not be contrary to or inconsistent with * * * 190.1, subsection 2 * * *.'

'189.2 Duties. The department * * * shall: 1. Execute and enforce the provisions of this title, except (statutes not here material) * * *.'

'189.15 Adulterated articles. No person shall knowingly manufacture, * * * or offer * * * for sale, any article which is adulterated according to * * * this title.'

'190.5 Adulteration with fats and oils. No milk, cream, skimmed milk, buttermilk, condensed or evaporated milk, powdered or desiccated milk, condensed skimmed milk, ice cream, or any fluid derivatives of any of them shall be made from or have added thereto any fat or oil other than milk fat, and no product so made or prepared shall be sold, * * *.'

Section 189.19 makes a violation of any of the above provisions punishable by a fine of not more than $100 or imprisonment in the county jail not to exceed 30 days and upon a third conviction for the same offense the offender may be restrained from operating his place of business.

We agree with the attorney general that clearly 190.1(2) establishes the standard and definition of margarine. It was stipulated the department of agriculture has prescribed no standards for oleomargarine pursuant the the authority given in 191.6 quoted above. And none may be adopted contrary to or inconsistent with 190.1(2). We cannot agree with defendants, however, that a proper interpretation of 190.1(2), either alone or in connection with any other statutes called to our attention, prohibits sale of margarine containing about two per cent butterfat.

There are two parts, separated by the disjunctive 'or', to the statutory definition of margarine. We first consider application of the second of these parts. Imperial, like all yellow colored margarines, is a substance which has a consistence similar to butter and is made in imitation or semblance of it. It also contains edible oils or fats in addition to a small quantity of milk fat. Since butter need contain only at least 80 per cent milk fat (190.1, subsection 1), Imperial, with about two per cent butterfat, may contain as little as 1.6 per cent milk fat. The attorney general's opinion which precipitated this action and his argument here are to the effect the words 'other than' as used in 190.1(2) cannot mean anything besides 'except' or 'to the exclusion of.' And it is by ascribing this meaning to 'other than' that 190.1(2) is interpreted as prohibiting sale of margarine containing as little as about two per cent milk fat.

We think this claims too much for 'other than.' While they are sometimes used to mean 'except' they also frequently mean 'in addition to,' 'different from' or words of similar import, and there are persuasive indications they are used in this latter sense here. At best it is not at all clear that 190.1(2) prohibits the use in margarine of a small quantity of milk fat. Defendants' brief agrees the words 'other than' are susceptible of other interpretations than that claimed by them in this connection.

Chapter 190 contains other references to 'other than' which may not fairly be construed as words of prohibition or exclusion. 190.1(5) defines imitation cheese as 'a product containing any substance other than that produced from milk or cream * * *.' This definition immediately follows that of cheese which is made with milk or cream. It is significant too that the statutory definition of margarine immediately follows that of butter in which the only fat mentioned is milk fat. In defining ice milk 190.1 (36, par. a.) states, 'It shall not contain fats others than milk fat and' it shall not be sold in any 'manner other than as provided herein * * *.'

Plaintiffs cite these opinions in which 'other than' are used in the sense for which they contend: 'Lames v. Armstrong, 162 Iowa 327, 330, 144 N.W. 1, 49 L.R.A.,N.S., 691, Ann.Cas.1916B, 511; Des Moines City Ry. Co. v. City of Des Moines, 152 Iowa 18, 26, 131 N.W. 43; Burlington Gaslight Co. v. Burlington, C. R. & N. R. Co., 91 Iowa 470, 472, 59 N.W. 292. Doubtless there are a great many others. See e. g. State v. Olson, 248 Iowa ----, 86 N.W.2d 214, 230; State v. Harless, 248 Iowa ----, 86 N.W.2d 210, 211; Roshek Realty Co. v. Rosheck Bros. Co., 248 Iowa ----, 87 N.W.2d 8, 14.

Defendants cite Ingram v. State, 241 Ala. 166, 3 So.2d 431, as supporting their interpretation of 190.1(2). There a deputy sheriff was indicted for taking a fee 'other than allowed by law for said services' etc. Although the indictment was held defective upon other grounds it was said a reasonable construction of the quoted language is that defendant took a fee not allowed by law in view of the added charge on unlawful fee was taken--if, as defendant evidently argued, the fee may have been less than that allowed by law it would not be an unlawful taking.

Lyman v. People, 198 Ill. 544, 64 N.E. 974, 975, cited in the Ingram opinion, is similar to it on principle. There the meaning of 'other than' as 'additional' was clearly negatived by other language in the indictment. Neither precedent is applicable here.

The definition of margarine in 190.1(2) is obviously copied from that enacted by congress in 1950 (15 U.S.C.A. § 55(f)). The only differences are that our statute uses 'oleo' as well as 'oleomargarine or margarine' and divides the two parts of the definition by 'or' rather than by the numbers (1) and (2) with a semicolon between the two parts. When the federal act was passed the definition and standard of margarine which had been adopted by the Food and Drug Administration, charged with administering the Food, Drug and Cosmetic Act (21 U.S.C.A. § 301 et seq.), permitted the use of milk, cream or butter as an ingredient. The 1950 act was not intended to nullify this definition and standard. And the federal regulation and standard now in effect expressly...