                              NEY      GENERAL

                               EXAS




                     June 7,    1965



Honorable John C. White               Opinion No. C-450
Commissioner of Agriculture
John H. Reagan Building               Re:   Whether the sale of cer-
Austin, Texas                               tain packages of sliced
                                            bread weighing less than
                                            one pound violates the
                                            provisions of Rule 5 of
                                            Article 719 of Vernon's
Dear Mr. White:                             Penal Code.
          You have requested the opinion of this office in con-
nection with the following questions:
          "1. Does a 'loaf' of bread lose its identity
     and need for conformity to the law when the product
     is baked in the usual fashion but packaged in slices
     without end pieces and labeled as 'bread slices' with
     a total weight of less than a pound?
          "2. Under the circumstances as above, would
     the elimination of the word 'bread' on the label
     and the substitution of a descriptive phrase such
     as 'party slices' or 'rye slices' or similar term(s)
     exempt the product from provisions of the law?
          "3.  If the slices are packaged in a fashion
     as to dlstinguish.them somewhat from the usual pound
     or heavier loaf, can the wrap cause the bread to
     lose its identity as a 'loaf',and exempt it from the
     law?
          "4.  Is it your opinion that       the makers of the
     law intended the term 'loaf' as a       general application
     to a unit of merchandisable bread       or is the law limited
     to a bread product whose sha e or       configuration has, by
     common usage, establishedYE%3a          'loaf'?"
          Rule 5 of Article 719, Vernon's Penal Code, provides
that:

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Hon. John C. White, page 2 (C-450)


         "Bread to be sold by the loaf made by bakers
    engaged in the business of wholesaling and retailing
    bread, shall be sold based upon any of the following
    standards of weight and no other, namely: a loaf
    weighing one pound or 16 ounces, a loaf weighing 24
    ounces or a pound and a half, and loaves weighing
    two pounds or 32 ounces, and loaves weighing three
    pounds, or some other multiple of one pound or 16
    ounces. These shall be the standard of weight for
    bread to be sold by the loaf. Variations, or toler-
    ance, shall not exceed one ounce per pound over or
    under the said standard within a period of 24 hours
    after baking."
          In regard to the foregoing statute and questions you
have set forth in your opinion request that:
         "The statute was passed in 1921. In 1921,
    practically all the bread offered for sale was
    sold in a solid, uncut or undivided loaf and sold
    by the pound and other multiples of a pound and
    sold as an unwrapped product. The wrapping of
    bread with labels on the wrapper descriptive of
    the contents was unknown at that time and no such
    product as sliced bread or sliced rolls was being
    made then. . . .'
          In Attorney General's Opinion No. WW-290 (1957), the
question was presented as to whether a one pound package of Rye
Slices composed of two rows of slices in a cardboard box with a
cellophane overwrap could be legally sold in Texas in view of the
provisions of Rule 5 of Article 719. In holding that such a sale
was not in violation of Rule 5 of Article 719, it was stated in
Attorney General's Opinion No. WW-290 (1957) that:
          "The purpose for prescribing standard weights
     for loaves of bread is to prevent the vendor from
     selling loaves of similar size as those of a larger
     size. 90 A.L.R. 1291. In the case of the product
     at hand, we fall to find any factor present which
     would tend to mislead the public. As a result of
     the packaging of the product, the buyer must pur-
     chase both rows of slices, which have an aggregate
     weight of one pound. Thus, it is logical, we
     believe, to hold that the purchaser is in fact
     getti;g Ia loaf' of bread which weighs one pound.
     . . .
          In the case of Petersen Raking Co. v. Bryan, 290 U.S.
570 (1934), the United States Supreme Court had before it the
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        Hon. John C. White, page 3 (c-450)


        question of the validity of a statute of the State of Nebraska
        similar to Rule 5 of Article 719. The Court in its opinion up-
        holding the validity of the statute stated that:
                  f!
                   . . .The fixing of a maximum weight for
             each size or class of loaves is not unreasonable.
             In Burns Baking Co. v. Bryan, 264 U.S. 504, we were
             called on to consider the constitutionality of a
             similar measure.      .We were there adverted to
             the undoubted power,of the State to protect pur-
             chasers of bread from imposition by the sale of
             short-weight loaves (Schmidinger v. Chicago, 226
             U.S. 578, 588) and showed that the purpose of
             prescribing minimum weights Is to prevent sellers
             from palming off loaves ?f smaller size as those
             of a larger size. . . .
                  In view of the foregoing, it seems obvious that the
        intent of the Legislature in enacting Rule 5 of Article 719 was
        to protect purchasers of bread from being misled by "short-weight"
        loaves or units of bread. The Legislature, by prescribing the
        various weights that bread could be offered to the public for sale,
        was protecting the unwary from the unscrupulous. Such being the
        case, we are of the opinion that the use of the word "loaf" or
        'loaves" in Rule 5 of Article 719 should not be given a narrow or
        restrictive construction which might easily result in defeating
        the legislative intent. This viewpoint is well recognized as a
        cardinal rule of statutory construction. See 39 Tex.Jur., Sec-
        tion 110, Statutes.
                  We are therefore of the opinion that your first three
        questions should be answered in the negative. The mere descrip-
        tive designation, manner of packaging or method of slicing a loaf
        or unit of bread will not operate to exempt the vendor of such
        bread from the requirements of Rule 5 of Article 719.
                  As to the remaining question posed, we are of the
        opinion that it is the obvious legislative intent, in view of
        the foregoing authorities, that the use of the word "loaf" or
        'loaves' in Rule 5 of Article 719 refers to a "unit" of bread
        being offered for sale rather than the bread's shape or config-
        uration.
                             SUMMARY
                  The mere descriptive designation, manner of
             packaging or method of slicing a loaf or unit of
             bread being offered for sale will not operate to


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Hon. John C. White, page 4 (C- 450)


    exempt the vendor of such bread from the require-
    ments of Rule 5 of Article 719, Vernon's Penal
    Code.
           ,P.he
               use of the word 'loaf" or 'loaves" in
     Rule $ of irticle 719, Vernon's Penal Code, refers
     to a unit of bread being offered for sale rather
     than the bread's shape and configuration.
                           Very truly yours,
                           WAGGONER CARR
                           Attorney General


                           By:%k      \s
                              Pat Bailey
                              Assistant
PB:mkh
APPROVED:
OPINION COMMITTEE
George Gray, III, Acting Chairman
Bill Allen
John Banks
V. F. Taylor
Bob Norris
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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