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THEA NEY GENERAL
OF TEXAS
August 10, 1951
I-Ion. John C. White ‘Opinion No. V-1233
Commissioner
0 epartment of Agriculture Re: Applicability of Article
Austin, Texas 1037, ~Section D, V,P.C.,
regulating the capacity of
\r containers for the sale of
milk, to the product known
Dear Sir: as “concentrated milk.”
You have requested the opinion of this office as to the ap-
plicability of Article 1037, Section D, V.P.C., to “concentrated
milk, n a product which is presently being marketed in Texas by
.-
dairy produce companies. You describe “concentrated milk” as
fOliQWS :
“Concentrated milk consists of fluid milk evapo-
rated down to the consistency of light cream. It may
be pasteurized, homogenized and fortified with Vita-
min D. To reconstitute it the consumer adds two parts
of cold tap water to one part of concentrated milk.”
As you indicate in your request, the dairy produce com-
panies are proposing to market this product in one-third quart
containers, so that by mixing two parts of water with the concen-
trate, the equivalent of a quart of whole milk will be produced.
Specifically~ you question the legality of packaging the “concentrated
milk” in one-third quart contaihers, in view of the provisions of
Article 1037, Section D, V.P.C., which reads as follows:
“It shall be unlawful for any person to keep for
the purpose of sale, offer or expose for sale, or sell,
any milk or cream in bottfes or other containers of
any capacity other than those provided for measures
of capacity for liquid in Article 5732,Chapter 7, Title
- 93, of the Revised Civil Statutes of Texas of 1925, to
wit: the gallon, a multiple of the gallon, one-half gal-
lon, quart, pint, one-half pint, and gill.”
Hon. John C. White, Page 2 (V-1233)
From the language as set out above, if “concentrated
milk” is “milk” within the comprehension of the statute, then it
would be illegal to package it in an odd fraction container, such
as a one-third quart container.
An examination of Article 1037, V.P.C., reveals that
“milk” is not specifically defined for the purpose of such statute.
We find, however, that “milk” has been specifically defined for
the purposes of another statutory regulation, as provided in Arti-
cle 165-3, V.C.S., which pertains to the grading and standardiaa-
tion of the milk itself, as distinguished from the regulation of the
size of containers in which it may be marketed. For the purpose
of the grading regulation set out in Article 165-3, “milk” is de-
fined as follows:
“Milk is hereby defined to be the lacteal secre-
tion obtained by the complete milking of one or more
healthy cows, excluding that obtained within fifteen
days before and five days after calving, or such longer
period as may be necessary to render the milk practi- -
cally colostrum free; which contains not less than eight
per cent (8%) of milk solids-not-fat, and not less than
three and one-fourth per cent (3-l/4%) of milk fat.”
That same statute also includes the following pertinent
definitions :
“(J) Reconstituted or Recombined Milk. Recon-
stituted or recombined milk is a product resulting from
the recombining of milk constituents with water, and
which complies with the standards for milk fat and
solirJ+*not-fatof milk as defined herein.
$6
. . .
“(0) Milk Products. Milk products shall be taken
to mean and include cream, vitamin D milk, ‘buttermilk,
cultured buttermilk, skimmed milk, reconstituted or
recombined milk, milk beverages, and skimmed milk
beverages. . . .”
Although the foregoing definitions apply to a different
---.
type of regulation, we find them of value in determining the char-
acter of “concentrated milk” in the dairy industry, and we think
. :. -
Hon. John C. White, Page 3 (V-1233)
“concentrated milk” as defined by you would not be “milk” with-
in the foregoing definitions.
In addition to the statutory definitions, we find a per-
suasive authority in the case of Commonwealth v. Boston ,White
Cross Milk Co., 95 N.E. 85 (Mass. Sup. 1911). That case indi-
cates that “concentrated milk” as a product in the dairy industry
has been known for many years. That case involved an appeal
from a criminal conviction for selling the product resulting
from combining “concentrated milk” with water under a statute
which penalized selling watered milk. The court held as follows:
“It is not contended that the manufactured pro-
duct of the defendant, to which it added water for re-
duction and sale, was natural milk as it comes from
the cow. And we have searched the evidence in vain
for anything upon which it could be found that this
manufactured product had come to be known in the
trade as milk. Certainly there is no such intimation
in the testimony of the government, and that put in by
the defendant is wholly to the effect that the defend-
ant’s ‘concentrated milk’ tias a new and unique pro-
duct, manufactured only since 1908, under letters
patent, at a factory equipped for that purpose, shipped
to the defendant’s place of business in Boston, and
there extended by the defendant and put upon the mar-
ket only in its diluted form. . . . The fact that the
word ‘milk’ in this statute has been construed to in-
clude cream as one of its natural components (Com-
monwealth v. Gordon, 159 Mass. 8, 33 N.E. 709) does
not indicate that it should include also a substance pro-
duced from it by a process of manufacture with arti-
ficial appliances involving som,e chemical changes.
The substance itself is not milk, just as butter and
cheese and condensed milk are not themselves milk.”
We therefore conclude that “concentrated milk,” as you
have defined it in your letter,is not “milk” within the requirements
provided in Article 1037, Section D, V.P.C., and it may be legally
sold in one-third quart containers.
. i. _
Hon. John C. White, Page 4 (V-1233) -;
SUMMARY
The product *concentrated milk” is not “milk”
within the provisions of Article 1037, Se,ction D, V.P.C.,
and it may legally be sold in one-third quart containers.
APPROVED: Yours very truly,
Ned McDaniel PRICE DANIEL
State Affair6 Division, Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews
First Assistant
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