(dissenting) :
I agree with the majority opinion that the Alabama “filled milk” statute, Title 2, § 189, Code of Alabama 1940 (Re-comp. 1958) is constitutional on its face. It — and similar statutes — has historically served a good purpose in the legitimate exercise of the state’s police power, but here, in the case now before us, the application of the Alabama statute is also in issue. The application of Alabama’s “filled milk” statute to the product plaintiff seeks to market in the State of Alabama in such a manner as to completely prohibit the marketing of the product as opposed to reasonably regulating the product cannot be supported by either the evidence or the law. The evidence in this case is overwhelmingly clear that the artificial milk product— which uses cocoanut oil instead of butter fat — here sought to be marketed, is as wholesome and nutritious as fluid whole milk and that the container in which the plaintiff proposes to market its product in Alabama is clearly and unmistakably labeled “IMITATION MILK.”
The majority concedes the existence of “State court decisions which express a contrary view,” but the majority continues, in an effort to justify the complete *356denial to plaintiff of the right to market its product in the State of Alabama, that “Our only choice in reaching a final decision in this case is to follow the cases previously decided by the United States Supreme Court which are contrary to each contention made by the plaintiff * * Evidently the basis for this conclusion by the majority of this Court is the two Carolene cases: United States v. Carolene Products Co., 304 U. S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (3938); Carolene Products Co. v. United States, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15 (1944).
In the 1938 Carolene case, the application of a “filled milk” statute was upheld by the Supreme Court of the United States upon the basis of certain congressional findings that were made in 1923. These congressional findings were to the effect that the substitution of vegetable fat for butter fat was an injurious substitution. In referring to the congressional committee’s reports, the Court noted that butter fat was singularly significant in that it contained certain vitamins which were not present in vegetable fat. The evidence in this case is without dispute that the product plaintiff now seeks to market in Alabama is as wholesome and nutritious — if not more so — than fluid whole milk. It is common knowedge that the rationale upon which the 1938 Carolene case was based will not — in 1968 — justify the conclusion the majority reaches in this case.
The majority places even stronger reliance on the 1944 Carolene case to sustain the Alabama statute which is designed “to prevent deception, substitution, and possible fraud upon the consuming public,” because, as stated by the majority of this Court, “In the present case the imitation milk was to be distributed by a regular processing firm or dairy concern in the same type of container or carton used for milk that could easily confuse a purchaser in a self-service type store regardless of the label or writing on the container.” This reliance is equally misplaced. To me, it is inconceivable that in this day and age the “ordinary consumer,” who is experienced in examining and choosing from thousands of products, could or would be deceived by a product clearly labeled “IMITATION MILK” in bold black letters an inch high. In this connection, there is appended to this dissent a photograph of the carton the majority finds deceptive.
For the reasons stated, I do not believe either of the Carolene cases dictates or even warrants the conclusion reached by the majority in this ease, the effect of which is to deny the plaintiff the right to market a wholesome, nutritious and n'ondeceptive product in the State of Alabama. The law is clear that the Constitution of the United States condemns the arbitrary classification by states without regard to any relationship of such classification to the subject matter. It is basic to our law that such arbitrary classification violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1949); Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, 569 (1955); Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). The reliance by the majority upon Sage Stores Company v. State of Kansas ex rel. Mitchell, 323 U.S. 32, 65 S.Ct. 9, 89 L. Ed. 25, also decided twenty-four years ago, as authority for the conclusion that the Alabama statute does not deny “equal protection” is misplaced. In the Sage case, the Supreme Court held that the matter of whether or not the Kansas “filled milk statute” denied equal protection was a matter for Kansas to determine. The Supreme Court declined to find from the facts presented in the *357Sage case that there was no rational basis for applying the Kansas filled milk law to the product then sought to be marketed in the State of Kansas, because it had been determined, as a factual matter, in the lower court that the product sought to be marketed in Kansas was indistinguishable by the ordinary consumer from natural milk and that “the evil of confusion remains.”
In the case now before this Court, the plaintiff offered (as it did to the state authorities before this case was instituted) to make whatever changes the state authorities desired in order to eliminate the possibility of the ordinary consumer’s being confused and deceived. The Alabama authorities did not see fit to make any suggested changes for this purpose; instead, they merely altogether prohibited the marketing of the product. Such a decision reflects the Alabama authorities were not interested in regulating, under the police power of the State of Alabama, plaintiff’s product. Thus, the opinion of the majority of this Court has the effect of placing a stamp of approval upon the use of a “filled milk” statute to absolutely prohibit rather than to reasonably regulate. This reasoning if upheld would sanction an absolute prohibition on the sale of horse meat upon the theory that the consumer might buy it and serve it as beef when it was plainly labeled “Horse Meat.” Similarly, it would prohibit the sale of all artificial fabrics that had the appearance of cotton or wool, even though they were labeled “Nylon” or “Dacron,” or carried names of other artificial fibers, upon the theory that the ordinary consumer might confuse them with cotton or wool products. To sustain its position, the majority relies upon the same arguments that were used for years to prohibit the sale of oleomargarine. On this point of deception, the legal principles that have been used in misbranding cases should control. In 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 71 S.Ct. 515, 95 L.Ed. 566, the United States had sought to condemn as misbranded a product labeled as “imitation jam” because it did not meet the specifications for jam. The Supreme Court held that the product was not misbranded since it was uneqivocally labeled as an imitation. In writing the opinion, Mr. Justice Frankfurter stated:
“A product so labeled is described with precise accuracy. It neither conveys any ambiguity nor emanates any untrue innuendo * *
The action of the State of Alabama in absolutely prohibiting the marketing of plaintiff’s product in the state, through the guise of administering the Alabama “filled milk” statute, is arbitrary, capricious, discriminatory, and for these reasons violative of plaintiff’s constitutional rights as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
Such an enforcement of a statute, and the stamp of approval placed upon it by the majority of this Court, is consistent with the theory of government such as we had in this country under the Articles of Confederation when the United States were “united” in name only and during that period of this country’s history when, for any reason that served local interests, the thirteen states were allowed to interfere with commerce to prevent progress and the growth and development of the country. Such practice is untenable under our present system. I must emphasize that the exercise of police power by a state through the privilege of classifying must not be unduly interfered with; it must always be kept in mind that such classifications are presumed to be valid and the burden rightly remains on him who would attack a statute, or the application of a statute, to demonstrate its unconstitutionality. However, the burden placed by the majority of this Court upon the plaintiff is far too heavy to be consistent with our federal system of government. Quality Food Products, Inc., met and overcame the burden of demonstrating that no rational basis, consistent *358with the Constitution of the United States, exists for the classification of its product that will justify the absolute prohibition of marketing such product in the State of Alabama.
I therefore dissent.
APPENDIX