Milnot Company v. Arkansas State Board of Health

• Decision Date: 03 February 1975
• Docket Number: No. LR-73-C-182.,LR-73-C-182.
• Citation: 388 F. Supp. 901
• Parties: MILNOT COMPANY, a Michigan Corporation, Plaintiff, v. ARKANSAS STATE BOARD OF HEALTH, and its members, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

388 F. Supp. 901

MILNOT COMPANY, a Michigan Corporation, Plaintiff, v. ARKANSAS STATE BOARD OF HEALTH, and its members, et al., Defendants.

No. LR-73-C-182.

United States District Court, E. D. Arkansas, W. D.

February 3, 1975.

Dale Price, Howell, Price, Howell & Barron, Little Rock, Ark., for plaintiff.

W. A. Eldredge, Jr., Smith, Williams, Friday, Eldredge & Clark, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This declaratory judgment action is brought by the Milnot Company, a Michigan corporation which has its principal place of business in Illinois and which manufactures a food product under the trade name of "Milnot." The defendants are the Arkansas State Board of Health and its individual members who are charged with enforcement of the Arkansas Filled Milk Act, Act 190 of 1925, Ark.Stat.Ann. § 82-919, which reads as follows:

"It shall be unlawful to manufacture or sell filled milk in the State of Arkansas.

"Filled milk is defined, by this act, to be cow's or goat's milk which has had all or the greater part of the butterfat removed, and had substituted in lieu thereof cocoanut oil, peanut oil, or some other oil or fat."

Section 2 of this Act provides that violators are guilty of a misdemeanor punishable by a fine of not less than $50.00 nor more than $500.00. The defendants claim that Milnot is a "filled milk" product within the meaning of Ark.Stat.Ann. § 82-919 and have refused to permit the plaintiff to sell or distribute Milnot in Arkansas. Plaintiff asks this Court pursuant to 28 U.S.C. § 2201 to declare that Milnot does not come within the purview of the Arkansas Filled Milk Act or, in the alternative, to declare the statute unconstitutional on the ground that it violates the provisions of the Fourteenth Amendment to the United States Constitution. The case is now before the Court on cross-motions for summary judgment.¹

The product involved in this case, Milnot, is a blend of fat free milk and soya oil to which is added vitamins A and D. The first step in the production process is to remove the butterfat from milk and to apply a heat treatment which pasteurizes the product and stabilizes the protein in order to produce a smooth viscous substance. The product is then concentrated by evaporation of over half the remaining water, and after the butterfat is replaced with soya oil, vitamins are added, the product is homogenized, sealed in containers, and sterilized. In a stipulation of facts, the parties agree that Milnot is not deleterious to the health and that it fully complies with all applicable nutrition standards. The defendants admit that a "product consisting of milk from which butterfat has been removed and combined with soya or soybean oils and fortified with Vitamins A and D, is wholesome, nutritious and useful as a food source." Nor is there any contention that Milnot's labeling creates consumer confusion or deception since the parties stipulate that the label "contains an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count" and since the affidavit submitted by a Vice President of Milnot, William Adams, is unopposed in the assertion that Milnot complies with federal labeling standards.

While no legislative history is available concerning the purposes of the Arkansas Filled Milk Statute, Congress enacted the Federal Filled Milk Act, 21 U. S.C. §§ 61-64, in 1923 in the belief that the butterfat portion of milk was the only source of essential vitamins contained in milk. The Act also sought to aid the interests of milk producers and to protect the consuming public from deception and confusion believed inherent in the sale of imitation dairy products. See, United States v. Carolene Products Co., 51 F.Supp. 675 (N.D. W.Va.1943); Carolene Products Co. v. United States, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15 (1944). Between the years 1920 and 1940, many states adopted legislation prohibiting or severely limiting the sale of filled milk products, but shortly thereafter, as additional facts about filled milk became known, the absolute bar began to weaken. Post-war scientific studies quickly established the cholesterol laden properties of the butterfat portion of milk, and fortified food items containing vitamins were developed. Today, many states have repealed filled milk laws or the statutes have been declared invalid by the courts.

Initially, the Court refuses to construe the Arkansas Filled Milk Act so as to avoid the constitutional issue squarely presented by this case. The plaintiff argues that the statute should be construed as applicable only to harmful products or products intentionally sold for purposes of deception since the purpose of the statute is to keep non-nutritious milk substitutes off the market and to prevent consumer deception. However, this Court cannot ignore the clear language of the Act which defines "filled milk" to be cow's or goat's milk from which the greater part of the butterfat has been removed and replaced with oil or fat. Milnot unquestionably meets these criteria.

Plaintiff predicates its contention that the Act violates the Fourteenth Amendment upon the Due Process Clause and the Equal Protection Clause. The due process argument is premised on the complete prohibition of the sale of filled milk, and the equal protection claim rests on the allegation that the State of Arkansas applies the statute in a discriminatory manner by permitting the sale of other products that contain essentially the same ingredients and serve the same purpose as Milnot.

Those states which have held that filled milk statutes violate the Due Process Clause of the Fourteenth Amendment have based statutory invalidity on the absence of a rational relationship between the public interest to be protected and the remedy adopted by the legislature — the complete prohibition of the sale of filled milk products. However, regulatory legislation affecting ordinary commercial transactions should be upheld unless in light of facts made known or generally assumed the legislation cannot be said to rest upon some rational basis within the knowledge of the legislators. United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing that those facts have ceased to exist. Id., at 153, 58 S.Ct. 778. Such inquiries, however, "must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it." Id., at 154, 58 S.Ct. at 784.

While the Carolene cases upheld the constitutionality of the Federal Filled Milk Act against due process and equal protection arguments, this Court believes that changed circumstances render these authorities of little precedential value in assessing the validity of the Arkansas statute in 1974. In the 1938 Carolene case, the Filled Milk Act was upheld on the basis of findings made by Congress in 1923 that the substitution of vegetable fat for butterfat was injurious and nutritionally unsound. As stated, present knowledge indicates that these conclusions were erroneous and that filled milk with vitamins constitutes a nutritious and wholesome product. However, neither the parties' stipulation of facts nor the plaintiff's affidavit contains sufficient information to allow the Court to rule at this time that the Arkansas Filled Milk Act is unsupported by "any state of facts either known or which could reasonably be assumed." It is possible, of course, that defendants could prove at trial that filled milk is not as nutritious as natural milk, and such a state of facts might afford a rational basis for the statute. The 1944 Carolene case upheld the federal statute on the ground that it was necessary to protect the consumer from being confused and deceived due to the similarity of filled and natural milk. Again, the Court doubts the current validity of this assumption, but the information before the Court on the cross-motions for summary judgment simply does not warrant a finding of no rational...