Two questions are presented on this appeal: 1. Does sec. 97.025, Stats., prohibit the manufacture and sale of appellant’s product?
2. If so, is the statute constitutional?
Most of the facts were stipulated, there being few, if any, in dispute, and those not in sharp conflict. Here we have the trial court applying the law to the facts or the facts to the law, as it sees it. In such cases this court is not bound by the findings of the trial court, and the rule that the findings must be sustained unless against the great weight and clear preponderance of the evidence is not applicable. Will of Mechler (1944), 246 Wis. 45, 16 N. W. (2d) 373.
The lower court held that the statutes mentioned prohibit the sale of Dairy Queen as an imitation of ice cream and as an adulterated product or substandard ice cream. We do not agree.
*475There is no question but that Dairy Queen is a healthful and nutritious food. That fact is stipulated. The essential elements, so far as nutrition is concerned, are contained in the skim milk. These elements are present in greater quantity in Dairy Queen than in ice cream.
Certain types of ice cream may legally have a fat content of not less than eleven per cent. The fat content of sherbet and ices is to be not more than three and one-half per cent. Thus, Dairy Queen, having a fat content of six per cent, falls in the “no man’s land” in between. Respondent contends that the purpose of these legislative requirements as to butterfat content was to keep a wide margin between the two classes of frozen milk products, and that the sale of a six per cent product would work a fraud upon the public.
Counsel conceded on oral argument that the only reason for barring the sale of Dairy Queen was that it might perpetrate a fraud upon the consumer. The question then follows, Is it necessary to bar the product, or has the department sufficient authority under ch. 93, Stats., to so regulate it as to prevent fraud?
Hutchinson Ice Cream Co. v. Iowa (1916), 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, upheld the constitutionality of an act fixing minimum standards of ice cream on the ground that its purpose was to prevent the perpetration of fraud on the public from inferior makes of ice cream. The United States supreme court said that the acts there considered merely prohibited the sale of certain compounds as ice cream. That is what the statutes here prohibit. The court specifically said that it was not called upon to determine whether the state of Iowa could, in the exercise of its police power, prohibit the sale of a wholesome product if the public welfare appeared to require such action.
We cannot infer from the provisions of sec. 97.02, Stats., that the legislature meant to bar the sale of all frozen dairy *476products having a fat content between three and one-half and eleven per cent. Dairy Queen is not ice cream, and it is within the authority of the respondent to so regulate its sale that the public may know it is not ice cream.
In Rigbers v. Atlanta (1910), 7 Ga. App. 411, 413, 66 S. E. 991, in considering a municipal ordinance providing for a butterfat content in ice cream of at least' ten per cent, the court said:
“It will be noticed that under this ordinance the prohibition is not against selling ice cream of less than the prescribed percentage, as ice cream, but against selling it at all. Though the seller distinctly informs the purchaser that the ice cream contains less butterfats than ten per cent, the sale is unlawful, according to the ordinance. Even if the city has the power to prescribe that no ice cream of less than a certain percentage of richness in butterfats shall be sold as standard ice cream, it still would not have the power to say that ice cream below that standard should not be sold at all. For instance, it might be permissible to say that the term ‘ice cream/ or ‘standard ice cream,’ or ‘first-class ice cream,’ should relate only to ice cream of a certain prescribed richness, and that whoever sold ice cream of poorer quality should, either by calling it under some other name, or by indicating on the vessel in which it is delivered, or otherwise, disclose the inferiority of its quality. But under the ordinance before us, if a physician desired that a patient should have ice cream, but did not deem it safe for him to take the richer ice cream, it would be illegal for any one to furnish the grade of ice cream actually suited to the sick man’s physical condition.”
The court there held that the ordinance was so unreasonable that it could not be upheld.
It is contended that Dairy Queen is an imitation ice cream in that it resembles ice cream in taste, texture, and consistency. Appellant does not concede this, but even if it were so, a resemblance to ice cream does not make the product an imitation. There is no artificiality employed in producing *477Dairy Queen. Its ingredients are the same natural ingredients contained in ice cream, but in different proportions. We can see where imitation and adulteration may be present and fraud perpetrated upon the public where, as in Carolene Products Co. v. United States (1944), 323 U. S. 18, 65 Sup. Ct. 1, 89 L. Ed. 15, abstracted butterfat is replaced with vegetable oil; and where, as in Day-Bergwall Co. v. State (1926), 190 Wis. 8, 207 N. W. 959, the product was admittedly an artificial vanilla.
In United States v. 62 Cases (10th Cir. 1950), 183 Fed. (2d) 1014, 1018, it was said:
“If it is sold under a name of a food for which a definition and standard has been prescribed, if it looks and tastes like such a food, if it is bought, sold, and ordered as such a food, and if it is served to customers as such a food, then it purports to be, and is represented to be, such a food.” (Emphasis ours.)
According to the stipulation, Dairy Queen will not be sold as ice cream. Whatever resemblance it may have to ice cream, therefore, cannot mislead the public in buying it.
Respondent argues that in removing some of the butterfat,. which is the more expensive ingredient, and adding more of the cheaper nonfat solids, the appellant manufactures an inexpensive product which would tempt retailers to pass it off as ice cream. This so-called substitution has no effect upon the wholesomeness or nutritious properties of the product, and is not sufficient reason to bar it, especially in view of the authority granted to the respondent by ch. 93, Stats., to regulate its manufacture and sale.
Under ch. 93, Stats., the department of agriculture has the power to establish standards for food products and to prescribe regulations governing marks and tags upon such products. Those standards shall not affect the right of any person to dispose of a food product not conforming to the *478standards, sec. 93.09 (4), Stats., “but such person may be required to mark or tag such product, in such a manner as the department may direct, to indicate that it is not intended to be marketed as of a grade contained in the standard and to show any other fact regarding which marking or tagging may be required under this section.” The purpose is clear. The legislature does not intend to deny any person the right to make and sell a food product so long as its consumption does not endanger public health and welfare. It does intend, however, to so regulate its sale that the public is not subjected to the injury of buying a product different from that which is intended to be bought. See New Orleans v. Toca (1917), 141 La. 551, 75 So. 238.
We do not agree with respondent’s contention that products such as Dairy Queen are difficult to label. It seems to us that the proposed method of selling Dairy Queen — in a store of its own, where no other product is sold; with a posted sign that the product is not ice cream and the containers are so labeled — and where it will not be sold outside its containers, such as in restaurants and the like— will not perpetrate a fraud upon the public. Furthermore, the department may impose any other regulation which it deems necessary to advise the public that what it is buying is not ice cream.
The provision of sec. 97.25 (3), Stats., which declares certain “adulterated” foods not adulterated if sold under their own “distinct names, if labeled to show true character and composition” is applicable to Dairy Queen, since, as we have held, it is not an imitation of ice cream.
It is our conclusion that the general welfare does not require prohibition of the manufacture and sale of the product here in question, the power of regulation being sufficient to prevent any fraud upon the consuming public.
*478aSince our holding with respect to the first question presented is that sec. 97.025, Stats., and the related statutes involved do not prohibit the manufacture and sale of Dairy-Queen, it is unnecessary to consider the constitutional question.
By the Court. — Judgment reversed and cause remanded with directions to enter judgment consistent with this opinion.