United States v. Carolene Products Co.

• Decision Date: 13 February 1934
• Docket Number: No. 2234.,2234.
• Citation: 7 F. Supp. 500
• Parties: UNITED STATES v. CAROLENE PRODUCTS CO.
• Court: U.S. District Court — Southern District of Illinois

7 F. Supp. 500

UNITED STATES v. CAROLENE PRODUCTS CO.

No. 2234.

District Court, S. D. Illinois, S. D.

February 13, 1934.

Frank K. Lemon, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., both of Springfield, Ill.

Hoyne, Niemeyer, Murdock & Reilly, of Chicago, Ill. (Geo. N. Murdock, of Chicago, Ill., of counsel), for defendant.

FITZHENRY, Circuit Judge.

This is an information against defendant, a corporation, charging it in the first count with having unlawfully shipped, in interstate commerce, from Litchfield, Ill., to a consignee at Muncie, Ind., over the lines and routes of the Railway Express Agency, "a certain adulterated article of food injurious to the public health, to wit, certain filled milk, to wit, one case of `Carolene' being then and there a product of condensed and concentrated skim milk, to which there had theretofore been added and with which there had theretofore been blended and compounded a certain fat and oil other than milk fat, to wit, the said `Carolene' then and there, to wit, at the time and place aforesaid, was in imitation or semblance of, to wit, milk, cream, skim milk, condensed milk and concentrated milk, to wit, the said filled milk, to wit, the said `Carolene' not then and there being a distinct proprietary food compound," then negativing the exception as to infants' food, charging, "said shipment in interstate commerce as aforesaid of the said filled milk, to wit, the said `Carolene' was then and there unlawful and prohibited and in violation of the Act of Congress approved March 4, 1923, entitled, `An Act to Prohibit the Shipment of Filled Milk in Interstate or Foreign Commerce'; contrary to the form of the statute," etc. USCA, title 21, §§ 61, 62, 63.

The information contains three counts, the second and third of which are substantially the same as the first. The gist of the information is that defendant is the manufacturer of a food product, being a compound of skimmed milk and cocoanut oil, and shipped some of its product, in interstate commerce, from Litchfield, Ill., to Muncie, Ind., in violation of the so-called "Filled Milk Act."

Defendant has demurred to the information, and charges that the statute under which the prosecution is had is unconstitutional and void for the following reasons:

1. The statute creates a conclusive presumption that: (1) Filled milk is an adulterated article; (2) it is injurious to the public health; (3) that its sale constitutes a fraud upon the public; and thereby denies defendant the right to take issue upon these material facts and to prove it is not an adulterated article, under the laws of the United States; that it is not in fact injurious to the public health, and that its sale in no way constitutes a fraud upon the public; and thereby deprives defendant of its property without due process of law, in violation of the Fifth Amendment to the Constitution.

2. That the statute is invalid because it prohibits the shipment of defendant's product in interstate commerce, but does not forbid the transportation in interstate commerce of mixtures and compounds of milk and mineral or vegetable fats in imitation or semblance of butter, and is therefore arbitrary and unreasonable and deprives defendant of its property without due process of law.

3. Because the statute is invalid in that Congress in adopting it assumed the powers of the Judicial Branch of the government as defined by the Constitution of the United States.

4. The statute is unconstitutional because under the power given to Congress by the Constitution to regulate interstate commerce (article 1, § 8, cl. 3), it has prescribed for the actual prohibition in interstate commerce of an article which is in itself healthful and nutritious.

5. Because defendant is denied a hearing to which it is entitled under the Pure Food and Drugs Act, and none is provided by the so-called "Filled Milk Act"; that before defendant can be deprived of its rights it must have notice and a reasonable opportunity to be heard in defense of its rights.

Section 1 of the so-called Filled Milk Act (21 USCA § 61), paragraph (a), defines the term "person"; (b) describes "interstate or foreign commerce"; and (c) defines the term "filled milk" as meaning any milk, cream, or skimmed milk, whether condensed or otherwise, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated. The paragraph contains an exception covering and describing so-called infant foods.

Section 2 (21 USCA § 62) declares filled milk, as defined, to be an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public; that it shall be unlawful for any person to manufacture it within any territory or possession or the District of Columbia, or to ship the product or deliver it for shipment in interstate or foreign commerce.

In other words, the act recognizes milk, cream, or skimmed milk, condensed or otherwise, to be entirely legitimate and innocuous articles and proper commodities for interstate commerce, but when the well-known article of skimmed milk has had some harmless vegetable oil or fat added to it, then it becomes adulterated, is injurious to the public health, and a fraud upon the public, notwithstanding the recognition of it by the Pure Food and Drugs Law as a wholesome article of food, entitled to enter interstate commerce, provided it is labeled and branded so that a purchaser, in actual commerce, may know exactly what it is and its nature. USCA, title 21, § 10, Act of June 20, 1906, c. 3915, § 8.

Section 7 of the Pure Food and Drugs Act of 1906 (USCA, title 21, § 8), in force at the time of the passage of the so-called Filled Milk Act, defines "adulterated articles" as follows:

"For the purposes of sections 1 to 15, inclusive, of this title, an article shall be deemed to be adulterated;

"Drugs. * * *

"Confectionery. * * *

"Food. In the case of food:

"Injurious mixtures. — First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.

"Substitutes. — Second. If any substance has been substituted wholly or in part for the article.

"Valuable constituents abstracted. — Third. If any valuable constituent of the article has been wholly or in part abstracted.

"Damage or inferiority concealed. — Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed.

"Deleterious ingredients; preservatives in shipment conditionally excepted. — Fifth. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health. When in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise, and directions for the removal of said preservative shall be printed on the covering or the package, the provisions of sections 1 to 15, inclusive, of this title shall be construed as applying only when said products are ready for consumption.

"Animal or vegetable substances unfit for food; products of animals diseased or having died otherwise than by slaughter. — Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter."

The later act (Act of March 4, 1923) contains no express provision with reference to repeal of former statutes or preventing it from operating upon sections 7 and 8 of the Act of June 30, 1906 (USCA, title 21, §§ 8 and 10). The last paragraphs of the latter section expressly exclude from the operation of the other provisions of the Pure Food and Drugs Law:

"* * * mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.

"Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word `compound,' `imitation,' or `blend,' as the case may be, is plainly stated on the package in which it is offered for sale. The term blend as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only. * * *"

The passage of the Act of March 4, 1923, certainly repealed those sections, so far as the subject of "filled milk" is concerned, regardless of its effect upon other subjects. It was undoubtedly the intention of Congress to single out skimmed milk, and prohibit its transportation in interstate commerce, if anything wholesome, healthful, or otherwise be added to it, declaring it to be injurious to the public health, adulterated, and a fraud upon the public. It is common knowledge that skimmed milk constitutes a large proportion of the entire milk production.

The constitutionality of the Filled Milk Act is attacked, and we naturally look to the reports of the committees of Congress and the debates to ascertain the objects and purposes of the legislation. Duplex Printing Press Co. v. Deering et al., 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196. Some excerpts from the report of the Committee on Agriculture and Forestry of the Senate upon the measure, when the bill was being considered by that body, are very enlightening and...