         .c .
     4

                               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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