The principal ingredient and bulk of this product, "Instant Whip" is fluid cream to which nitrous oxide is added under pressure; also small quantities of sugar and vanilla are added. This operation is an efficient means of producing whipped cream in large quantities and keeping the cream in containers while being shipped for long distances in interstate commerce. This product has substantially the same food value as cream whipped in a different manner. Outside of the container it is as contaminable as cream. Aside from the nitrous oxide, there is no substantial chemical difference between this product and ordinary cream. The fact that the product may be used as an attractive and delectable dressing to frozen desserts and may belong economically in the surplus commodity class, does not rebut the finding of the Appellate Division that the product is a milk product and properly regulated pursuant to the Sanitary Code. Whether this product should remain subject to regulation as to its manufacture and sale only as required under the Agriculture and Markets Law (§§ 71-h and 71-k) or whether it is vital to health that the source also of the fluid cream should be subject to inspection and control, lies within the determination of the Commissioner of Health who is charged with safeguarding the health of the community. It cannot be gainsaid that supervision at the source affords greater safety to the public than mere supervision of the manufacture and sale. If classified under the State Sanitary Code, the product would be subjected to the same safeguards of health that are placed about the production and sale of milk products generally. The plaintiff admits that under the Agriculture and Markets Law it has purchased cream at will from uninspected sources outside of the State. The Public Health Council is a board of nine members, eight of whom are appointed by the Governor and the State Commissioner of Health is a memberex officio. This Council enacts the Sanitary Code subject to the approval of the Commissioner of Health. This Public Health Council amended the State Sanitary Code on April 14, 1939 by adding to the *Page 101 definition of milk products "cream to which any substance has been added and for use in fluid state or whipped." This amendment was made to bring the product of the plaintiff within the definition of a milk product.
In view of the evidence supporting the reasonableness of the classification as a milk product, the regulation and supervision of its product and manufacture under the Sanitary Code in a manner employed for milk products generally cannot be said to be unreasonable, much less arbitrary and capricious.
The judgment of the Appellate Division should be affirmed.
LOUGHRAN, RIPPEY and CONWAY, JJ., concur with LEWIS, J.; FINCH, J., dissents in opinion in which DESMOND, J., concurs; LEHMAN, Ch. J., taking no part.
Judgment accordingly.