Odle v. Shamrock Dairy of Phoenix

• Decision Date: 22 May 1968
• Docket Number: No. 1,CA-CIV,1
• Citation: 441 P.2d 550,7 Ariz.App. 515
• Parties: Ezra ODLE, Dairy Commissioner, State of Arizona, Appellant, v. SHAMROCK DAIRY OF PHOENIX, INC., an Arizona corporation, Appellee. 622.
• Court: Arizona Court of Appeals

Page 550

441 P.2d 550

7 Ariz.App. 515

Ezra ODLE, DairyCommissioner, State of Arizona, Appellant, v.SHAMROCK DAIRY OF PHOENIX, INC., an Arizona corporation, Appellee.

No. 1 CA-CIV 622.

Court of Appeals of Arizona.

May 22, 1968.

Rehearing Denied June 25, 1968.

Review Denied July 12, 1968.

Darrell F. Smith, Atty. Gen., by Kent A. Blake, Sp. Asst. Atty. Gen., and John V. Riggs, Asst. Atty. Gen., for appellant.

Jennings, Strouss, Salmon & Trask, by Riney B. Salmon and Rex E. Lee, Phoenix, for appellee.

CAMERON, Chief Judge.

This is an appeal by the Arizona State Dairy Commissioner from the judgment of the Superior Court of the State of Arizona in and for the County of Apache which found that two products of the appellee, Shamrock Dairy of Phoenix, Inc., were not milk products within the meaning of the Arizona statutes and therefore not subject to the jurisdiction or regulation of the Arizona State Dairy Commissioner.

We are called upon to determine whether a product which contains no milkfat and less than 8 1/4% Milk solids-not-fat is a milk product within the meaning of the Arizona statuteA.R.S. § 3--601 et seq. and the 1953 Milk Ordinance and Code of the United States Public Health Service, Department of Health, Education and Welfare.

The facts necessary for a determination of this matter on appeal are as follows.Shamrock Dairy of Phoenix, Inc., hereinafter referred to as Shamrock, is an Arizona corporation with its principal place of business in Phoenix, Arizona.In addition to its dairy operation in Phoenix, it has a plant in Mesa, Arizona, where it products two products known as 'High-Protein Drink' and 'Chocolate Flavored Beverage'.The two products are marketed in containers similar to those containers used for the sale and distribution of milk and milk products.

An analysis of the products, made at the request of the Arizona State Dairy Commissioner, revealed that the High-Protein Drink did not contain any milkfat but did contain 7.5% Milk solids-not-fat (skim milk powder); water, 88.8%; vegetable fat, 3.11%; and other components including corn syrup solids, stabilizers, and emulsifiers, 0.59%.The percentages of the components found in the Chocolate Flavored Beverage are: milk solids-not-fat, 7.3%; vegetable fat, 1.34%; water, 85.2%; and other components, 6.16%, but no milkfat.

The formula as well as some of the materials necessary for the production of the two products were supplied to Shamrock by Farm Products Laboratories of Buena Park, California.The process by which the products were manufactured is begun by placing a measured amount of water in a cylindrical tank and other relevant ingredients except for the vegetable fat are inserted into a 'horn' located near the tank where they are mixed.The water is then pumped out from the bottom part of the tank underneath the ingredient horn and up to the top of the tank.This circulation process continues until all the ingredients have mixed into the water.The vegetable fat is a malleable solid which is introduced directly into the cylindrical tank either prior or subsequent to the aforedescribed mixing process and dissolves in the vat after it is so introduced.

The milk solids-not-fat, or skim milk powder, is used in the High-Protein Drink and Chocolate Flavored Beverage to lend body and to enhance its flavor.The testimony of the representatives of Shamrock testified that High-Protein Drink is advertised as a beverage for drinking, baking, and cooking, and along with the Chocolate Flavored Beverage is homogenized, pasteurized, and must be kept under refrigeration.

Shamrock petitioned the State Dairy Commissioner to determine whether the two products in question, as well as other products not discussed here, were in fact milk products under the statute and therefore under the control of the Arizona State Dairy Commissioner.A hearing was held before the State Dairy Commissioner and the Commissioner ruled that the two items were in fact milk products.Shamrock appealed to the Superior Court pursuant to the Judicial Review of Administrative Decisions Act, A.R.S. § 12--901 et seq.From a judgment of the Superior Court decreeing that High-Protein Drink and Chocolate Flavored Beverage were not milk products the State Dairy Commissioner appeals.

Our statute reads:

'A.The production, transportation, handling and sale of milk and milk products, and the inspection of dairy herds, dairies and milk plants shall be regulated in accordance with the terms of the unabridged form of the 1953 edition of the United States public health service milk ordinance and code, a certified copy of which shall be on file in the office of the secretary of state, except that all milk, reconstituted or recombined milk and flavored milk prepared for sale to or use by the ultimate consumer shall contain not less than three and five tenths per cent butter fat.'A.R.S. § 3--605.

The United States Public Health Service Milk Ordinance and Code (1953) contains the following definitions:

'A.Milk.--Milk is hereby defined to be the lacteal secretion, practically free from colostrum, obtained by the complete milking of 1 or more healthy cows, which contains not less than 8 1/4 percent milk solids-not-fat and not less than 3 1/4 percent milkfat.

'D.Skim Milk.--Skim milk is milk from which a sufficient portion of milkfat has been removed to reduce its milkfat content to less than 3 1/4 percent.

'H.Reconstituted or Recombined Milk.--Reconstituted or recombined milk is a product which results from the recombining of milk constituents with water, and which complies with the standards for milkfat and solids-not-fat of...