(concurring). I concur fully in the opinion of Mr. Justice Imrie and I make these additional observations:
Although the court has gone very far in upholding statutes and administrative regulations affecting the merchandising of food, there must, at bottom, be something rational about the direction the control takes.
*344In its present-day application the effect of the 1922 statute on the current sale of canned evaporated skimmed milk shows no rationality. It is stipulated that the “ healthfulness of the products in question ’ ’ is not in issue.
The statute itself provides a specific device to prevent mistaking this product from canned whole evaporated milk by making directions as to the size and type of labeling; and it is not disputed that plaintiff complies exactly with this direction.
What is left is the size of the can; and it is not demonstrated residually how this could rationally be related to the healthfulness of the product, which is out of the case, or to questions of deception where the statute has provided a way, which has been followed, to avoid deception.
After hearing the evidence adduced on the trial the Official Referee found specifically that “ there is no proof in this record to sustain a charge of fraud or deception ’ ’. He concluded that “ no one can be deceived The defendant’s witnesses called on this subject demonstrated readily that there would not be the slightest difficulty in distinguishing this product from evaporated whole milk if the statutory direction for labeling were followed.
Nothing in the record sustains the remnant of rationality urged for the statute that it would avoid actual confusion. A housewife able to read a plain and large label — and this is the regular pursuit of every housewife who shops for family food — could not be diverted from what she wanted or confused into buying what she did not want by any of this. Certainly differences in can size of monumental proportions would not help her.
But a housewife who wants to buy evaporated skimmed milk has the same right to her choice as has a housewife who wants to buy evaporated whole milk; and by compelling her either to take it in a ten pound can or do without it altogether, the statute imposes a standard that is at once wholly discriminatory and quite arbitrary. No one could argue sensibly that a ten pound can of milk has any value in the domestic use of the average family; and, indeed, the size prohibits its use.
It is too late in the day to assume that people who come into grocery stores do not know the .difference between skimmed milk and whole milk, whether they get it in a can or in a bottle. Both kinds of milk have present-day wide utilization, and we are fully able to notice judicially, in respect of the constitutional validity of a statute, as the court did in Burns Baking Co. v. Bryan (264 U. S. 504, 517), situations in which it is obvious *345from “ common experience ” there is no real danger of deception.
The proof and the findings here negative any reasonable possibility of the plaintiff’s product being “ confused with ” or “ passed off as ” whole evaporated milk “ in spite of proper labeling ” (Reed, J. in Carolene Products Co. v. U. S., 323 U. S. 18, 31). If it be assumed plaintiff has the burden of proof on this issue it is entitled to the benefit of the whole record, including the testimony of defense witnesses negativing confusion.
The reason why the absolute oleomargarine prohibition was sustained, as Stone, J., noted in U. S. v. Carolene Products Co. (304 U. S. 144, 151), when the case was first before the court on the sufficiency of the indictment, was that it was thought that the product was injurious to health and a substitute not distinguishable from the more healthful butter. The Carolene case, of course, itself involved a product regarded by Congress as injurious to health.
When the Carolene case reached the court after a trial and conviction of petitioners (323 U. S. 18, supra) the court reviewed the refusal of the judge at the trial to admit evidence showing that the nutritional deficiency with which Congress had mainly concerned itself had been corrected and sustained the conviction since the statute was aimed also at preventing substitution for or confusion with milk products.
It is obvious that the confusion to which the court referred is not a slight or casual confusion between things of equal value, but lurking behind every decision sustaining close regulation to prevent confusion is the thought that a truly inferior product or one of less value may readily be palmed off for the other. It is in this context that “ confusion ” is used. The extensive quotations in the second Carolene case (supra, pp. 29, 30, 31) demonstrate the background of what the court meant by “ passed off as ” and “ confused with ” (supra, p. 31).
It was this sensible correlation which led it to think that irrationality had not there been demonstrated by the petitioners (supra, pp. 31, 32). In its crucial turning point, the decision in Hebe Co. v. Shaw (248 U. S. 297, 302) depended on the court’s belief that the statute was designed to prevent the fraudulent substitution of an inferior product.
It may be presumed from the very enactment of a statute such as this one is, that in 1922 the Legislature felt condensed skimmed milk was injurious to health or so lacking in essential fats as to be deficient in food value; but we are able to, and should, notice judicially the enormous growth in public knowl*346edge of the high protein and low calorie value of skimmed milk and its increasing use in the last thirty-two years by an informed public aware of what it wants.
We must look at the effect of the statute in the enlightenment of our subsequent experience. (See Holmes, J. in Chasleton Corp. v. Sinclair, 264 U. S. 543, 547.) It is difficult to see the difference, if there is any, between the size of a can of milk and the size of the tolerances permitted in the making of a wholesome loaf of bread which the court in 1923, at least, felt amounted to an unreasonable State statute. (Burns Baking Co. v. Bryan, 264 U. S. 504, supra.)
We may, as it was pointed out in that case, look at the effect of the regulatory statute pragmatically to see if it has rationality. The difficulty with the Nebraska statute was that the tolerances in the baked loaves were, in the opinion of the court, too small to be practical in the preparation of bread. Although it was argued by the State that no attempt had actually been made by the baker to comply with the law and the evidence was that the law might easily have been complied with (supra, p. 510), the court felt that the statute was not calculated to avoid imposition of fraud and the restriction was essentially unreasonable (supra, p. 517).
When a later statute allowing more reasonable tolerances came before the court it was upheld (Petersen Baking Co. v. Bryan, 290 U. S. 570). The earlier decision based on different tolerances in the bread was not overruled; rather it was recognized and distinguished. It was held in the Peterson case merely that the tolerances of the amended statute were not affected by the rule that had been earlier announced.
In the actual decision made, as distinguished from the general language of opinion, some of the cases which have been discussed are not controlling under the facts of the case before us and were concerned with quite different kinds of problems. In Day-Brite Lighting v. Missouri (342 U. S. 421), for example, the court was dealing with the right of an employee to vote without deduction from his wages; Daniel v. Family Ins. Co. (336 U. S. 220) dealt with the right of a State to forbid insurance agents from engaging in the undertaking business; Lincoln Union v. Northwestern Co. (335 U. S. 525) dealt with the denial of opportunity to obtain and retain employment because of membership in a labor union; and Olsen v. Nebraska (313 U. S. 236) dealt with a limitation on a fee charged by an employment agency. Merely to state the subject of these regulations is to state also a rational case for legislative power.
*347Rationality still governs the question when it is to be decided whether a statute amounts to a naked exercise of power negatived by constitutional protection. In 1943, when much of the decisional law giving breadth to the legislative and administrative control of food products had become very well settled, it was decided in Aerated Products Co. v. Godfrey (290 N. Y. 92) it was unreasonable on the record then before the court to require by statute certain manufacturing procedures to be followed in making a frozen dessert mix which the Legislature evidently deemed required in the interest of public health.