United States v. Carolene Products Co, 640

• Decision Date: 25 April 1938
• Docket Number: No. 640,640
• Parties: UNITED STATES v. CAROLENE PRODUCTS CO
• Court: U.S. Supreme Court

304 U.S. 144

58 S.Ct. 778

82 L.Ed. 1234

UNITED STATES

v CAROLENE PRODUCTS CO.

No. 640.

Argued April 6, 1938.

Decided April 25, 1938.

Appeal from the District Court of the United States for the Southern District of Illinois.

Messrs. Homer S. Cummings, Atty. Gen., and Brien McMahon, Asst. Atty. Gen., for appellant.

Mr. George N. Murdock, of Chicago, Ill., for appellee.

Mr. Justice STONE delivered the opinion of the Court.

The question for decision is whether the 'Filled Milk Act' of Congress of March 4, 1923, c. 262, 42 Stat. 1486, 21 U.S.C. §§ 61 63, 21 U.S.C.A. § 61—63,¹ which prohibits the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment.

Appellee was indicted in the District Court for Southern Illinois for violation of the act by the shipment in interstate commerce of certain packages of 'Milnut,' a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The indictment states, in the words of the statute, section 2, 21 U.S.C.A. § 62, that Milnut 'is an adulterated article of food, injurious to the public health,' and that it is not a prepared food product of the type excepted from the prohibition of the act. The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court, United States v. Carolene Products Co., D.C., 7 F.Supp. 500. The case was brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, 18 U.S.C. § 682, 18 U.S.C.A. § 682. The Court of Appeals for the Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as an appropriate exercise of the commerce power in Carolene Products Co. v. Evaporated Milk Ass'n, 7 Cir., 93 F.2d 202.

Appellee assails the statute as beyond the power of Congress over interstate commerce, and hence an invasion of a field of action said to be reserved to the states by the Tenth Amendment. Appellee also complains that the statute denies to it equal protection of the laws, and in violation of the Fifth Amendment, deprives it of its property without due process of law, particularly in that the statute purports to make binding and conclusive upon appellee the legislative declaration that appellee's product 'is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud on the public.'

First. The power to regulate commerce is the power 'to prescribe the rule by which commerce is to be governed,' Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23, and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Lottery Case, Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836; Hoke v. United States, 277 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337; McCormick & Co., Inc. v. Brown, 286 U.S. 131, 52 S.Ct. 522, 76 L.Ed. 1017, 87 A.L.R. 448. The power 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.' Gibbons v. Ogden, supra, 9 Wheat, 1, 196, 6 L.Ed. 23. Hence Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare, Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; Hoke v. United States, supra, or which contravene the policy of the state of their destination, Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment.

Second. The prohibition of shipment of appellee's product in interstate commerce does not infringe the Fifth Amendment. Twenty years ago this Court, in Hebe Co. v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 63 L.Ed. 255, held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skimmed milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The power of the Legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted; and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public.

We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned; and since none is suggested, we might rest decision wholly on the presumption of constitutionality. But affirmative evidence also sustains the statute. In twenty years evidence has steadily accumulated of the danger to the public health from the general consumption of foods which have been stripped of elements essential to the maintenance of health. The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists and health experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for natural milk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk. The conclusions drawn from evidence presented at the hearings were embodied in reports of the House Committee on Agriculture, H.R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen.Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public.²

There is nothing in the Constitution which compels a Legislature, either national or state, to ignore such evidence, nor need it disregard the other evidence which amply supports the conclusions of the Congressional committees that the danger is greatly enhanced where an inferior product, like appellee's, is indistinguishable from a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult.³

Here the prohibition of the statute is inoperative unless the product is 'in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed.' Section 1(c), 21 U.S.C.A. § 61(c). Whether in such circumstance the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, 21 U.S.C.A. § 1 et seq., or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative judgment and not that of courts. Hebe Co. v. Shaw, supra; South Carolina State Highway Department v. Barnwell Bros. Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, decided February 14, 1938. It was upon this ground that the prohibition of the sale of oleomargarine made in imitation of butter was held not to infringe the Fourteenth Amendment in Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 22 S.Ct. 120, 46 L.Ed. 171. Compare McCray v. United States, 195 U.S. 27, 63, 24 S.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561; Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184.

Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their Legislatures to prohibit all like evils, or none. A Legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 57 L.Ed. 164; Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A.1915F, 829; Hall v. Geiger-Jones Co., 242 U.S. 539, 556, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643; Farmers' & Merchants' Bank v. Federal Reserve Bank, 262 U.S. 649, 661, 43 S.Ct. 651, 656, 67 L.Ed. 1157, 30 A.L.R. 635.

Third. We may assume for present purposes that no pronouncement of a Legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a...