(dissenting on motion for rehearing).
Sec. 97.025 (1), Stats., prohibits the sale, etc., of “any article, product, or compound made wholly or partly out of milk, cream, sweetening ingredient, flavoring, with or without coloring or eggs, which shall be in imitation of ice cream, sherbet, or ices as defined by sec. 97.02.”
*478eThe error we made in construing the above-quoted portion of sec. 97.025 (1), Stats.,,in the original opinion in this case was in assuming that the method and manner of sale determines whether a product is an imitation of ice cream, or not. It was not the intention of the legislature that the method of sale of a product, including the labeling or advertising thereof, shall determine whether or not it is an imitation ice cream, but that such determination must be made from the product itself, irrespective of how sold.
The legislature by sec. 97.025 (1), Stats., did not prohibit merely the “sale” “in imitation of ice cream” of a product such as Dairy Queen resembling ice cream but having a butterfat content in between that of ice cream and sherbet, as defined by sec. 97.02 (10) and (10a), but it went further and absolutely prohibited the sale of such a product as Dairy Queen if it {the product, not sale thereof) was “an imitation of ice cream.”
During World War II, when the federal government rationed the amount of milk solids that might be used in frozen dairy foods, the legislature enacted as a temporary war measure ch. 5, Laws of 1943, which reduced the minimum fat requirements for ice cream to eight per cent for the duration of the war emergency only, thus enabling a greater quantity of ice cream to be made from the available amount of milk solids. An ice cream having a butterfat of eight per cent is very similar to Dairy Queen with its six per cent fat content. This statute legalizing ice cream with an eight per cent fat content was repealed by ch. 586, Laws of 1945. In the 1949 session of the legislature, Bill 343, S., was introduced, and in the 1951 session of the legislature, Bill 417, S., was introduced, both of which provided for legalizing an iced dairy-food product with a fat content in between sherbet and ice cream, such product to be known as “iced milk.” The purpose of such bills was to legalize a *478fproduct such as Dairy Queen, but both bills were killed by the legislature. These facts are further evidence of the legislative intent to prohibit the sale in Wisconsin of a product such as Dairy Queen having a milk-fat content in between that of sherbet and ice cream.
The learned trial judge- personally examined and tasted Dairy Queen and upon the evidence produced and his own personal examination and tasting he found in his findings of fact as follows:
“4. That ‘Dairy Queen’ is a partially frozen food product similar to ice cream, as defined by sec. 97.02 (10) of the Wisconsin statutes, in its appearance, odor, taste, and texture or consistency; . . .
“9. That ‘Dairy Queen’ so closely resembles ice cream in appearance, taste, and texture or consistency that it can be readily substituted for and sold as ice cream; that evidence of this fact has been obtained by inspectors of the dairy and food division of the state department of agriculture in states where ‘Dairy Queen’ has been licensed.”
It is an elementary principle of law that the findings of a trial court, if supported by evidence, will not be disturbed unless the same be against the great weight and clear preponderance of the evidence. Depies-Heus Oil Co. v. Sielaff (1944), 246 Wis. 36, 16 N. W. (2d) 386; Angers v. Sabatinelli (1945), 246 Wis. 374, 17 N. W. (2d) 282, 18 N. W. (2d) 705.
All discussion that the plaintiff’s program of selling Dairy Queen does not contemplate the sale of its product as an imitation of ice cream by use of signs, labeling, or containers, etc., is therefore beside the point because the legislature, by absolutely prohibiting the sale of an imitation product, left no discretion in the department of agriculture to regulate its sale through proper signs, etc., so as to prevent confusion, deception, and fraud of the consuming public.
*478gSec. 97.25 (3), Stats., referred to in the original opinion (which statute declares certain “adulterated” foods not adulterated if sold under their own “distinct names, if labeled to show true character and composition”), has no application to Dairy Queen because this is not a case of an “adulterated” food but an “imitation” product.
Sec. 93.09, Stats., which provides that the department of agriculture “may establish standards for the grade of food products” gives the department no authority to regulate conditions of sale to protect the public against confusion, deception, and fraud by products which resemble standardized products. This section does not delegate to the department any labeling powers except labels for grades of products which conform to the legislative standards. Under that section the department could establish grades of ice cream and labels for the respective grades, thus controlling to that extent the sales of so-called premium ice creams which claim higher than minimum fat content. But the department’s authority is limited to this power, and does not extend to labeling products which are not defined, or whose sale is not permitted by the legislature.
In some few cases the legislature has itself specified labels for products which resemble standardized products but which are substandard. It has fixed the labeling for cheese which is wholesome but substandard because of high moisture content (sec. 97.49, Stats.). It has fixed the labeling for renovated butter (sec. 97.45) ; and until cheese from standardized milk was permitted in 1951, it required cheese’made from skim milk to be in a distinctive shape, a form of labeling (sec. 97.43).
This refusal of the legislature to rely on labeling for the protection of consumers is reasonable and has been the approach of congress in the Food, Drug and Cosmetic Act *478hin providing for standards of identity. As the United States supreme court said in Federal Security Adm’r v. Quaker Oats Co. (1943), 318 U. S. 218, 230, 63 Sup. Ct. 589, 87 L. Ed. 724:
“The provisions [of the federal law] for standards of identity thus reflect a recognition by congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other.”
Being satisfied that sec. 97.025 (1), Stats., absolutely forbids the sale of Dairy Queen as an imitation of ice cream, there remains the question of whether such a statute is unconstitutional. The memorandum decision on the motion for rehearing cites the case of John F. Jelke v. Emery (1927), 193 Wis. 311, 214 N. W. 369, as holding that if so construed the statute must be held to be unconstitutional as being in violation of the due-process clause of the Fourteenth amendment to the United States constitution. The statute before the court in the Jelke Case was one which prohibited the sale of oleomargarine in the state.
The United States supreme court is the final arbiter of what regulatory measures adopted by the legislatures of the various states in the exercise of the states’ police power do or do not violate the due-process clause. The decision of that court in Federal Security Adm’r v. Quaker Oats Co., supra, in which the opinion was written by Mr. Chief Justice Stone, would seem to be directly in point. In that case the federal security administrator, acting pursuant to the federal Food, Drug and Cosmetic Act promulgated regulations establishing “standards of identity” for various milled-wheat products, excluding vitamin D from the defined standard of “farina” and permitting it only in “enriched farina,” which was required to contain vitamin Bi, riboflavin, nicotinic acid, and iron. The Quaker Oats Company had for *478ithe past ten years manufactured and marketed a wheat product commonly used as a cereal food, consisting of farina to which vitamin D had been added, but to which was not added the other elements necessary to qualify it to be sold under the regulations of “enriched farina.” The packages, however, bore a label correctly stating the amount of vitamin D per ounce contained in the product. There was no question but that the cereal so marketed by Quaker Oats Company was a wholesome food product but it did violate the regulations. The question was then whether the regulations were valid in absolutely prohibiting the sale of such cereal. The court upheld the validity of the regulations and it stated (p. 230) :
“The provisions for standards of identity thus reflect a recognition by congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other. We cannot say that such a standard of identity, designed to eliminate a source of confusion to purchasers — which otherwise would be likely to facilitate unfair dealing and make protection of the consumer difficult — will not ‘promote honesty and fair dealing’ within the meaning of the statute.”
In Carolene Products Co. v. United States (1944), 323 U. S. 18, 65 Sup. Ct. 1, 89 L. Ed. 15, the Carolene Company contended that if the federal Filled Milk Act was held to be applicable to the products it manufactured and shipped in interstate commerce, the act, as thus applied, violated the due-process clause. The company based this contention upon the fact that Carolene was a wholesome and beneficial food product, fairly labeled, and sold on its merits without fraud to the public, and having none of the nutritional deficiencies for which congress prohibited the interstate shipment of “filled milk.” The process of manufacturing Carolene consisted of taking natural cottonseed or cocoanut oil or fish-liver oil, which latter oil contains vitamins A and D. The *478jcompound was sold under the name of Carolene, and other trade names, in cans of the same size and shape as those used for evaporated milk, but the cans were truthfully labeled to show the ingredients. So far as the record disclosed the company’s products were equally as wholesome and nutritious as milk with the same content of vitamins and calories. The court in its decision upholding the constitutionality of the act said (pp. 23, 24, 31) :
“The possibility and actuality of confusion, deception, and substitution was appraised by congress. The prevention of such practices or dangers through control of shipments in interstate commerce is within the power of congress. . . .
“Congress, evidently determined that exclusion from commerce of filled-milk compounds in the semblance of milk was an appropriate method to strike at evils which it desired to suppress. Although it now is made to appear that one evil, the nutritional deficiencies, has been overcome, the evil of confusion remains and congress has left the statute in effect.
“Here a milk product, skimmed milk, from which a valuable element — butterfat—has been removed is artificially enriched with cheaper fats and vitamins so that it is indistinguishable in the eyes of the average purchaser from whole-milk products. The result is that the compound is confused with and passed off as the whole-milk product in spite of proper labeling.
“When congress exercises a delegated power such as that over interstate commerce, the methods which it employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; -that it is an arbitrary fiat. This is not shown here.”
There is a “rational basis” (to use the language of the United States supreme court in the Carolene Case) for the Wisconsin legislature to set a certain minimum butterfat content for ice cream and to absolutely prohibit the sale of *478kany other frozen milk product that does not have the specified minimum amount of butterfat, which in taste, texture, or appearance might be confused with ice cream. Both Dairy Queen and ice cream are made from milk and cream, or products extracted therefrom. There is a much more rational basis for excluding Dairy Queen from sale than oleomargarine, because oleomargarine is an entirely different product than butter, and the making of it is an entirely different industry than the making of butter. The making of Dairy Queen does not differ materially from the making of ice cream, and all that the manufacturer of it has to do in order to sell its product legally in Wisconsin is to see that it contains the minimum amount of butterfat required by the statute. However, butterfat is much more expensive than milk solids and, if the manufacturer of Dairy Queen were required to meet the butterfat standards of the statute, the competitive advantage over ice cream because of the lower cost of its ingredients would be lost. This feature, however, does not render the statute prohibiting its sale unconstitutional, on the ground that it promotes monopoly, but is a further justification of the action of the legislature in trying to protect the buying public from the purchasing of a cheaper product made in imitation of a more expensive one.
The comparative nutritional values of milk fat as compared to milk solids was not an issue in the trial below, nor is it on this appeal. However, the evidence disclosed that the market price of milk fat is approximately one dollar per pound and that of milk solids about eleven cents per pound. Furthermore, the legislature has placed great store on the percentage of milk fat in the standards it has established for milk and dairy products. This court can well take judicial notice that the nutritive value of milk fat is essentially calories, and that it provides a concentrated form of energy, and is a carrier of fat-soluble vitamins. These facts provide a reasonable *478-lbasis for the legislature establishing standards of dairy products on the basis of milk-fat content.
The memorandum opinion denying the motion for rehearing states that permitting the sale of Dairy Queen will help the farmers by giving them an additional outlet for their milk. In addition to being entirely immaterial on the legal issues presented, it is doubtful if future events will demonstrate it to have been a correct prophesy. Dairy Queen is sold in competition with ice cream and for every sale of a cone of Dairy Queen to a customer there is the likelihood that there has been lost the sale of a cone of ice cream. The farmers receive a higher price for the milk and butterfat ingredients of ice cream than they do for Dairy Queen because of the much higher price that they receive per pound for butterfat than for milk solids.
I am authorized to state that Mr. Justice Broadfoot joins in this dissent.