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              THE    ATFORNEY                GENERAL
                          O)F%-EXAS
                      AITBTIN, 'l%xaw    78711

                         December 17, 1968


James E. Peavy, M.D.                   Opinion No. M-320
Commissioner of Health
Texas State Department of Health       Re:   Whether a milk product
Austin, Texas                                containing over 2.0%
                                             butterfat but less than
                                             3.25% butterfat is "milk"
                                             within the meaning of
                                             Article 165-3, Vernon's
                                             Civil Statutes, and re-
Dear Dr. Peavy:                              lated questions.
          You have reauested the ooinion of this office concern-
ing the question of: -
          II     whether or not a milk product con-
     taining &r   2.0% bu'tterfatbut less than 3.25%
     butterfat is in fact 'milk' within the meaning
     of Senate Bill 437 as passed by the 60th Legis-
     lature at its Regular Session."
          Senate Bill.437, Acts of 60th Leg., Regular Session,
1967, Chapter 734, page 1974 , made certain amendments to Article
165-3, Vernon's Civil Statutes. Subsection A in Section 1 of
Article 165-3 sets forth the following definition:
          "Milk. Milk is hereby defined to be the
     lacteal secretion, practically free from colostrum,
     obtained by the complete milking of one or more
     healthy cows, which contains not less than 8-l/4
     percent milk solids-not-fat and not less than
     3-l/4 percent milkfat. (Milkfat-              is
     the fat of milk.)" (Emphasis added.)
          As the milk product to which you refer in your question
contains less than 3.25% butterfat, such product does not meet
the standards or recuirements set forth for "milk" as defined
by Section 1 of Article 165-3.
          Subsection F in Section 1 of Article 165-3 sets forth
the definition of "Skim Milk" or "Skimmed Milk", and provides
in part as follows:


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Dr. James E. Peavy, page 2 (M-320)


         II
              .  Skim milk or skimmed milk is milk
                  .   .

    from which sufficient milkfat has been removed
    to reduce its milkfat content to less than
    0.50 percent. . . .' (Emphasis added.)

         Subsection G in Section 1 of Article 165-3 sets forth
the definition of "Lowfat Milk", and provides in part as follows:
         H. . . Lowfat milk is milk from which a
    sufficient portion of milkfat has been removed
    to reduce its milkfat content to not less than
    0.50 percent and not more than 2.0 percent.
    . . .II (Emphasis added.)
         As the milk product to which you refer in your question
contains more than 2.0% butterfat, such product exceeds the maximum
butterfat content of both "Skimmed Milk" and "Lowfat Milk" as
defined by Section 1 of Article 165-3.
         In view of the foregoing, and by virtue of the definitions
set forth in Section 1 of Article 165-3, we are of the opinion that
a milk product containing over 2.0% butterfat but less than 3.25%
butterfat is not "milk" within the meaning of the provisions of
Article 165-3.
         you have raised the further question of whether the milk
product to which you refer is a regulated product within the pro-
visions of Article 165-3, even if such milk product is not "milk"
within the meaning of Article 165-3.
         While the provisions of Article 165-3 apply to those
milk products defined therein, a milk product not within such
definitions is nevertheless regulated to a certain extent by
such provisions. Subsection T-l in Section 1 of Article 165-3
provides in part that:
         "Milk and milk products are misbranded
    . . .; (2) when such milk and milk products do
    not conform to their definitions as contained
    in this Act; . . ."
Should a milk product not within the definitions set forth in
Section 1 of Article 165-3 be offered for sale as one of the de-
fined milk products, then, in such event, the product would be
misbranded and the person so violating the statute would be sub-
ject to the pena&ties of Article 165-3. To this extent, the


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Dr. James E. Peavy, page 3 (M-320)


milk product to which you have referred is regulated by the pro-
visions of Article 165-3.
         you have further raised the question of whether the
milk product to which you referred is subjec~tto the provisions
of Article 165-3a,Vernon's Civil Statutes.
         Section 2 of Article 165-3a, the "Texas Equal Health
Standard Milk Sanitation Act of 1961", provides in part that:
        "The purpose of this Act is to utilize ef-
   fectively existing agencies and departments in
   regulating, processing, and distributing milk and
   milk products to the end that Texas consumers
   will be assured of a full supply of wholesome,
   high quality milk, cream, and milk DrOdUctS bv
   requi&.ng.that ali Grade- 'A' pasteugised milk-
   and/or Grade~'A2.raw milk for-pasteurization
   shipped into Texas be produced under rules,
   regulations, and statutes providing standards
   as high or higher than those provided by the
   Texas Milk Grading and Labeling Law . . .
   (codified as Article 165-3, . . .) . . ."
   (Emphasis added.)
         Section 3 of Article 165-3a provides in part that:
        "From and after the effective date of this
   Act, no person, officer, or inspector authorized
   under the laws of this State or any municipality
   within the State to inspect or regulate the pro-
   duction of fluid milk of whatever quality, shall
   in anywise approve, qrant, or issue a permit,
   certificate,-or othe; authorization fok Grade 'A'
   pasteurized milk and/or Grade 'A' raw milk for
   pasteurization to be shipped into Texas unless the
   same IS produced in accordance with standards, rules,
   regulations, and statutes governing the production
   of milk in the State of Texas; and no such person,
   officer, or inswctor shall in anvwise permit.
   certify; or authorize the shipping of shy Grade
   'A' pasteurized milk and/or Grade 'A' raw milk
   for pasteurization into this State regardless of
   the grade, unless such person, officer, or in-
   spector shall certify that such fluid milk was
   produced under equivalent rules and regulations
   required for the production of milk in the State
   of Texas. . . .'I (Emphasis added.)

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Dr.   James E. Peavy, page 4 (M-320)


         Section 5 of Article 165-3a, which sets forth the
penalties for violation of the act, refers once again to "Grade
'A' pasteurized milk,,and "Grade 'A' raw milk for pasteurization."
           Subsection P in Section 1 of Article 165-3 provides
that:
           ,I
            . . . Grade 'A, raw milk or milk products
      are milk or milk products which have been pro-
      duced-&id handled in accordance with the specifi-
      cations and requirements as promulgated by the
      Commissioner of Health and which grade and grade
      label has been determined and awarded by a City
      or County Health Officer or by his representative.,'
      (Emphasis added.)
           Subsection Q in Section 1 of Article 165-3 provides
that:
                   Grade 'A, pasteurized milk or milk
      produc;s'a;e milk or milk products which have been
      produced and pasteurized in accordance with the
      specifications and requirements as promulgated by
      the Commissioner of Health. . . ." (Emphasis
      added.)
         Subsection 0 in Section 1 of Article 165-3 provides in
part that:
           "Milk products include cream, light cream,
      coffee cream, table cream, whipping cream, light
      whipping cream, heavy cream, heavy whipping cream,
      whipped cream, whipped light cream, whipped coffee
      cream, whipped table cream, sour cream, cultured
      sour cream, half-and-half, sour half-and-half,
      cultured half-and-half, reconstituted or recom-
      bined milk and milk products, concentrated milk,
      concentrated milk products, skim milk, skimmed
      milk, lowfat milk, fortified milk and milk prod-
      ucts, vitamin D milk and milk products, homog-
      enized milk, flavored milk or milk products,
      buttermilk, cultured buttermilk, cultured milk,
      cultured whole milk buttermilk, and acidified
      milk and milk products. . . ."
         Since the provisions of Article 165-3a are restricted
solely to "Grade 'A' pasteurized milk and/or Grade ,A' raw milk


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Dr. James E. Peavy, page 5   (M-320)



for pasteurization", and because the product to which you refer
does not fall within the definition of such milk products, we
are of the opinion that milk products containing over 2.0%
butterfat but less than 3.25% butterfat are not subject to the
provisions of Article 165-3a.
                         SUMMARY
        A milk product containing over 2.0% butter-
   fat but less than 3.25% butterfat is not "milk"
   within the meaning of Article 165-3, Vernon's
   Civil Statutes.
         A milk product containing over 2.0% butter-
    fat but less than 3.25% butterfat is not subject
    to regulation pursuant to the provisions of
    Article 165-3, except where such product is of-
    fered for sale as one of the milk products de-
    fined by Article 165-3.
         A milk product containing over 2.0% butter-
    fat but less than 3.25% butterfat is not subject
    to the provisions of Article 165-3a; Vernon's
    Civil Statutes.
                                       truly yours,


                                       rney General of Texas
Prepared by Pat Bailey
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
David Longoria
Douglas Chilton
W. 0. Shultx
Dyer Moore, Jr.
A. J. CARUBBI, JR.
Executive Assistant




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