Milnot Co. v. Douglas, Civ. A. No. 77-2526.

• Decision Date: 16 June 1978
• Docket Number: Civ. A. No. 77-2526.
• Parties: MILNOT COMPANY, a Delaware Corporation, Plaintiff, v. Gus R. DOUGLAS, Commissioner, West Virginia Department of Agriculture, and West Virginia Department of Agriculture, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

452 F. Supp. 505

MILNOT COMPANY, a Delaware Corporation, Plaintiff, v. Gus R. DOUGLAS, Commissioner, West Virginia Department of Agriculture, and West Virginia Department of Agriculture, Defendants.

Civ. A. No. 77-2526.

United States District Court, S. D. West Virginia, Charleston Division.

June 16, 1978.

Willis O. Shay, Clarksburg, W. Va., for plaintiff.

Thomas H. Vanderford, IV, Charleston, W. Va., for defendants.

MEMORANDUM OPINION

DENNIS R. KNAPP, Chief Judge.

Plaintiff Milnot Company instituted this action praying for a preliminary and permanent injunction enjoining defendants from embargoing or otherwise restricting the marketing in this state of Milnot Dairy Vegetable Blend (Milnot), a food product produced by plaintiff.

In November, 1977, defendants embargoed and removed from three Kroger stores in Parkersburg, West Virginia, a substantial quantity of Milnot and halted all further distribution of Milnot in the state. Defendants contend that their power to embargo and halt sales of Milnot is predicated upon the provisions of Chapter 19, Article 11, Section 2, of the Code of West Virginia, as amended, (W.Va.Code, 19-11-2), which states:

§ 19-11-2. Manufacture or sale of filled milk.

It shall be unlawful for any person to manufacture, offer or expose for sale or exchange, or have in his possession with intent to sell, offer or expose for sale or exchange, either in bulk or in containers, sealed or unsealed, under any name whatever, any condensed, evaporated, concentrated, powdered, dried or desiccated milk, cream or skimmed milk to which has been added or with which has been blended or compounded any fats or oils other than milk fats, producing what is known as filled milk.¹

This action followed, plaintiff contending that the above statute is, on its face, and as applied to plaintiff, repugnant to the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution of the United States.

This Court, with the consent of the parties, advanced this cause for a final determination on the merits.

A joint stipulation of facts has been filed by the parties and is offered as evidence in this case in support of their respective positions. It states as follows:

"1. The Milnot Company is a corporation organized under the laws of the State of Delaware, and is qualified to do business in West Virginia, having its principal place of business at 120 West St. John Street, Litchfield, Illinois.

2. The Milnot Company engages nationwide in the processing, marketing, distribution and sale of the food product hereinafter described under the trade name or label of Milnot.

3. Milnot consists of a blend of fat-free milk and vegetable (soya) oil, supplemented and fortified with Vitamins A and D. Milnot contains sweeteners, stabilizers, flavorings and vitamin concentrates but no milk fats, or solids other than milk solids.

4. Milnot falls within the classification of "filled milk" as set forth in W.Va.Code, 19-11-2, which statute further prohibits the manufacture or sale thereof in West Virginia.

5. The composition of natural milk is such that the non-fat solid portion is separable from the butterfat portion. The non-fat solid portion when separated either in whole or in part from the butterfat is commonly referred to as "skim milk" or "non-fat milk solids."

6. The removal of the butterfat from natural milk does not necessarily render the resulting product, skim milk, injurious to health.

7. Skim milk is a wholesome, nutritious food source when processed in accordance with proper standards and procedures.

8. The concentration of milk, milk derivatives, milk products and Milnot by the process known as `evaporation' does not affect adversely the nutritional value of such products.

9. Soya or soybean oils are wholesome, nutritious and useful food sources when processed in accordance with proper standards and procedures.

10. The addition of soya or soybean oils to skim milk or non-fat milk solids does not necessarily render the resulting product injurious to health.

11. Milnot is prepared and processed in accordance with proper standards and procedures which assure and preserve a safe and nutritive product. It contains no deleterious or harmful matter; and does not necessarily adversely affect the health of individuals consuming such product.

12. Milnot is processed in the following manner:

a. The butterfat is removed from natural milk. A heat treatment is then applied to the resulting non-fat milk solid which pasteurizes and stabilizes the protein therein in order to produce a smooth viscous product. Concentration of the product is then accomplished by the removal through evaporation of over half of the water, and soya or soybean oil is then added in place of the butterfat, producing the product Milnot. Each 13 fluid ounce container of Milnot is then fortified with 2,000 USP units of Vitamin A and 400 USP units of Vitamin D. Thereafter, the product is homogenized, which serves to inhibit fat separation and to aid digestion.

b. Milnot is then tested several times for total solids and fat content to insure compliance with claims on the label on standardization. The container of Milnot is hermetically sealed. Sterilization heat is applied as a final stage in the process.

13. Plaintiff Milnot Company operates modern, sanitary and hygienic plant facilities in the states of Indiana, Missouri, Oklahoma and Illinois, which plants are in compliance with all local, state and federal health standards.

14. Milnot, and each component ingredient thereof, is a nutritive substance and is of such quality as to comply fully with all applicable governmental nutrition standards.

15. Milnot is nutritionally beneficial to persons whose diet requires the elimination of butterfat and to infants unable to tolerate or adapt to butterfat.

16. The label attached hereto as Exhibit No. 1 properly sets forth the name and place of business of the manufacturer, packer or distributor and contains an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count.

17. The chemical analysis of Milnot is as follows:

                                                           1 Can
                                                         13 Fl. Oz
                    Calories                               493
                    Fats                                    24.65 gm
                    Carbohydrates                           39.88 gm
                    Protein (Animal)                        28.42 gm
                    Total Mineral Salts                      5.66 gm
                    Calcium                                972    mg
                    Phosphorus                             754    mg
                    Potassium                             1117    mg
                    Magnesium                               94    mg
                    Chlorine                               943    mg
                    Sodium Salt                            464    mg
                    Copper                                    .102 mg
                    Iron                                      .363 mg
                    Thiamine (B1)                             .232 mg
                    Riboflavin (B2 or G)                     1.60  mg
                    Niacin                                    .83  mg
                    Ascorbic Acid                            4.50  mg
                    Vitamin A                             2000     USP
                    Vitamin D                              400     USP
                

18. The composition of the vegetable fat within Milnot is calculated to be:

                            Fatty Acid Composition
                  Saturated     17.3%     Linolenic      1.3%
                  Total Oleic   58.5%     Other           .1%
                  Linoleic      22.8%     Arachidonic      0%
                

19. The soya oil used in Milnot is a highly refined cholesterol-free soya oil with an iodine value of 96 maximum. Such oil is a mono-unsaturated and poly-unsaturated vegetable fat product.

20. Milnot has generally the same texture, consistency and look as condensed milk products. Milnot is customarily marketed in locations adjacent to condensed milk products. Milnot has not in recent years prior to January, 1977, been marketed in West Virginia, and consequently no substantial sales nor...