Strehlow v. Kansas State Bd. of Agr.

• Decision Date: 14 January 1983
• Docket Number: No. 54466,54466
• Citation: 232 Kan. 589,659 P.2d 785
• Parties: Dr. Chester H. STREHLOW and Mary L. Strehlow, Appellees, v. KANSAS STATE BOARD OF AGRICULTURE, Appellant.
• Court: Kansas Supreme Court

Page 785

659 P.2d 785

232 Kan. 589

Dr. Chester H. STREHLOW and Mary L. Strehlow, Appellees, v.KANSAS STATE BOARD OF AGRICULTURE, Appellant.

No. 54466.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

In an action against the Kansas State Board of Agriculture by the marketers of "Imitation Lowfat Dry Milk," a filled dairy product as defined by the Kansas filled dairy products act, K.S.A. 65-725 et seq., seeking a declaratory judgment that the filled dairy products act is unconstitutional as applied to plaintiffs' product, the record is examined and it is held: the trial court was correct in its determination that the Kansas filled dairy products act, K.S.A. 65- 725 et seq. violated the plaintiffs' right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution; and it is further held that the trial court was correct in issuing a permanent injunction prohibiting the defendant from enforcing the Kansas filled dairy products act against the sale and marketing of "Imitation Lowfat Dry Milk" in Kansas.

Kenneth M. Wilke, Chief Counsel for the Kansas State Bd. of Agr., Topeka, argued the cause and was on the brief for appellant.

James P. Nordstrom, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and was on the brief for appellees.

James R. Hanson, of Boyer, Donaldson & Stewart, Wichita, was on the brief for amici curiaeAssociated Milk Producers, Inc. and Mid-America Dairymen, Inc.

HOLMES, Justice:

This is an appeal by the defendant, Kansas State Board of Agriculture(KSBA or the Board) from an order of the district court holding the provisions of the Kansas filled dairy products act (FDPA), K.S.A. 65-725 et seq. unconstitutional as applied to a product marketed by the plaintiffs.The facts are not in dispute and will be greatly summarized herein.

The plaintiffs, Dr. Chester H. Strehlow, and his wife, Mary L. Strehlow, are co-zone directors for Meadow Fresh Farms, Inc., a foreign corporation, in the sale and distribution of the corporation's "Imitation Lowfat Dry Milk"(Imitation) within the State of Kansas.Imitation contains, among other ingredients, partially hydrogenated coconut oil, whey (a milk by-product) and nonfat milk and is therefore a filled dairy product within the definition and meaning of the FDPA.As such, its sale in Kansas is prohibited.Imitation is a wholesome, nutritious, healthful and nondeleterious drink whose ingredients are generally recognized as safe by the United States Food and Drug Administration and which are also found in numerous other products readily available for human consumption, such as non-dairy creamers, imitation ice cream, cocoa mixes and salad dressings.The KSBA, in enforcing the provisions of K.S.A. 65-725 et seq., has ordered that Imitation not be sold in the State of Kansas.Following the issuance of the Board's order on September 30, 1981, plaintiffs filed a petition in Shawnee District Court for a declaratory judgment that the FDPA was unconstitutional and a determination that it could not be enforced against the plaintiffs in their efforts to sell and market Imitation.As there were no controverted issues of fact, the trial court sustained plaintiffs' motion for summary judgment, held that the FDPA, as applied to Imitation, was unconstitutional and enjoined the Board from enforcing the act against the plaintiffs and the sale and marketing of Imitation in Kansas.The Board has appealed.

The purposes of the FDPA are set forth by the Legislature in K.S.A. 65-726, which reads:

"Filled dairy products resemble genuine dairy products so closely that they lend themselves readily to substitution for or confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer.The manufacture, sale, exchange or offering for sale or exchange of filled dairy products creates a condition conducive to substitution, confusion, deception, and fraud, and one which if permitted to exist tends to interfere with the orderly and fair marketing [of] foods essential to the well-being of the people of this state.It is hereby declared to be the purpose of this act to correct and eliminate the condition above referred to; to protect the public from confusion, fraud, and deception; to prohibit practices inimical to the general welfare; and to promote the orderly and fair marketing of essential foods."

K.S.A. 65-727(b) provides:

"(b) The term 'filled dairy product' means any milk, cream or skimmed milk or any combination thereof, whether or not condensed, evaporated, concentrated, frozen, powdered, dried or desiccated, or any food product made or manufactured therefrom, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, or any solids other than milk solids, except sweeteners, stabilizers and flavorings, so that the resulting product is in imitation or semblance of any dairy product, including but not limited to, milk, sour cream, butter cream, skimmed milk, ice cream, ice milk, whipped cream, flavored milk or skim milk drink, dried or powdered milk, cheese, cream cottage cheese, ice cream mix, sherbet, condensed milk, evaporated milk, or concentrated milk: Provided, however, That this term shall not be construed to mean or include: (1) Any distinctive proprietary food compound not readily mistaken for a dairy product, when such compound is customarily used on the order of a physician and is prepared and designed for medicinal or special dietary use and prominently so labeled; (2) any dairy product flavored with chocolate or cocoa, or the vitamin content of which has been increased, or both, where the fats or oils other than milk fat contained in such product do not exceed the amount of cocoa fat naturally present in the chocolate or cocoa used and the food oil, not in excess of one-hundredth of one percent of the weight of the finished product used as a carrier of such vitamins; or (3) oleomargarine, when offered for sale and sold as and for oleomargarine."

K.S.A. 65-728 makes it unlawful for any person to manufacture, sell, exchange, or offer for sale or exchange any filled dairy product while 65-729 provides that any violation of the FDPA may be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment not to exceed one year or by both fine and imprisonment.

The trial court in its conclusions found that Imitation contains coconut oil, whey and nonfat dry milk among its ingredients, does not fall within any of the three exceptions set forth in K.S.A. 65-727(b), is a filled dairy product within the terms of the act and that its sale is prohibited by the statutes.The court also made the following conclusions of law:

"5.The FDPA in K.S.A. 65-727(b) lists several filled dairy products which are exempt from coverage.For example, the sale of oleomargarine, filled products used on order of a physician, and certain chocolate flavored products are allowed to be sold in Kansas.The pertinent exemption in the present case is K.S.A. 65-727(b)(2), the chocolate product exemption.Under the FDPA, Imitation is a filled product whose sale is prohibited.Yet, when chocolate flavoring is added to this product, it falls within K.S.A. 65-727(b)(2) and its sale becomes permissible.K.S.A. 65-727(b)(2) has the effect of creating two economic classes: the manufacturers and sellers of 'white' filled milk and the manufacturers and sellers of 'chocolate' filled milk.Plaintiffs in the instant case fall within the white seller and producer classification.Plaintiff contends, and this Court agrees, that this classification denies plaintiff equal protection of the law.

....

"7.There is no question that the interests sought to be protected by the FDPA are legitimate state interests.The only question is whether the classifications created by K.S.A. 65-727(b)(2) are based on distinguishing factors rationally related to the stated purposes of FDPA.It is this Court's opinion the classifications, white filled milk and chocolate filled milk, are not based on differences rationally related to protecting public health or preventing deceptive sales.No facts can reasonably be conceived to support the position that Imitation becomes more nutritious merely with the addition of chocolate.Nor does the mere fact a product is chocolate flavored make it less likely a consumer will be deceived into believing he is purchasing a non-filled product.While it is possible the addition of chocolate might put a consumer on notice that the product is not 100% natural, it does nothing to warn the consumer he is purchasing a filled product.

"8.Classifications based on the presence or absence of chocolate as an ingredient are not rationally related to the stated purposes of the FDPA.Such classifications are arbitrary and violate plaintiff's equal protection.Accordingly, the Court finds that the FDPA as applied to Imitation is unconstitutional and grants plaintiffs' motion for an injunction prohibiting the enforcement of the FDPA by the defendant against the plaintiffs.The Court's conclusion is supported by the following cases where it was found that similar Filled Milk Acts were violative of the equal protection clause: Milnot Company v. Douglas, 452 F.Supp. 505(SD WestVirg.1978);Milnot Company v. Arkansas State Board of Health, 388 F.Supp. 901(E.D.Ark.1975);Milnot Company v. Richardson, 350 F.Supp. 221(S.D.Ill.1972)."

It is obvious that the trial court's statements to the effect that the addition of chocolate flavoring to a filled dairy product would bring it within the exemptions of K.S.A. 65-727(b)(2) are erroneous.The exception only applies to the addition of chocolate flavoring to a dairy product which then results in the original product becoming a filled dairy product.The addition of chocolate flavoring to a filled dairy product such as Imitation does not bring that product within the exception...