      OFFICE   OF THE   ATTORNEY   GENERAL   OF   TEXAS




Gentlemen:                 Attention: Vs. W.




of Jenuary 11, 1941, requ
partment ae to the type o
from the requirementsOZ
whioh reads as fol.lows:
                                         mea6ur0 ol




                                     ihe stnnaard meas-
                                    eolcagsaconteining
                                    one and one-half,
                                   enty-live, SiSty,

                      atit shall be unlawful for
                     , aeeoclat2on,or corporation
                    e, es11 or offer for sale in

    (lnclufiirq
              berrels, IWC:W, c=rtona an9 other
    containers)of the above stemlard net weights.
         *%3-o.3. That each package of whe.at
    Slour, other cereal Elour ~.n3.
                                  c9rn med ahall
    have the net weight, name 0S menufacturer
    (ne8nin~the ~eraon, Slrm, ~ssocistl~on,or
    corporctlonknich processee the wheat or other
Departmentof Agriculture,Page 2



    cereal into flour, or whioh'prooessesthe oorn
    into meal) an8 the name of the place where mlll-
    ed prlntea or pls.lnlymarked on it in letters
    and figures clearly readable; and that it shall
    be unlawftilfor wheat flour, other cereal floup
    or aorn meal, to be packed for sale, offered
    for sale or sold within the State of Texas un-
    leas It shall be so labellea.
         ‘Sec.  4. That the provisions of thls Act
    shall not apply to the retalllng of wheat flour,
    other oered. flour or corn meal Blreot to the
    consumer from bulk stock, nor to sales of flour
    to bakeries for use in euch bakeries, nor to
    the exohange of flour or meal for xheat or corn
    by grist mills and other mills grlnainq for
    toll for producers; e.nCi
                            thr.tnothin.?herein
    contAined shall be held to ~only to Eny proWet+
    such as preQaretl-ozncakeflour. czi!<eflour or
    other snecialtv o.zc%edand distribsted ln iden-
    tiflea orirrlnalDzckaCe. t!3enet contents of
    which ere five (5) oounds or less.
         'Sea. 5. That any violation of thls Act
    shall be a mledemeanor,ana upon ccnvlotlon
    the offender sh&l be fined not lees than
    twenty-five,DolJ.ors($25) nor more than One
    Hunared Dollars ($100) for each oSfenee.8
    (Emphasisours)
        Xoa state thst:    '
        '*ThisDepartment,as well as food ana &ug
    authorities,has constrid the unaersooredpor-
    tions of Seatlon 4 a8 meaning bnreo~rea pancalre
    flour, prepared cake flour, or other prepared
    epeclnltles.' In other worde, we have construed
    It to mean uheat flour or other cereal flour to
    which has been eddea other lnqredlenta;for ln-
    stance, a leavenlnq agent, salt, sugar, ehorten-
    lng, powaerea mll'd,flavoring,or   other ingre-
    dients which would ppenzre said flour for cook-
    ing after the aadltion of water or milk only
    by the user.
         We now are confronted with various pro-
    ducts which the manufacturers thereof olaim to
Departmentof Agriculture,Page 3



    fall within this exemption; for instance, 'whole-
    wheat flour',.packed in tno pound:.oardboardoar-
    tdns. Said wholewheat Slour being strictly a
    general Duroose wholewheat flour with no other
    ingredientsudd.ed,the company manufacturingJo
    8ame, claiming it to be a 'specialty.‘-
         "flow,the first question Is, should this
    two pound packaTe of genr?rxlnurdofie'whole-
    wheat flour' be exempt from the provisions of
    the Act because it is packed In a cardboard
    oarton bearing the trade-mark and firm name of
    a particular mill,~said mill olalafng the pack-
    age~to be a 'speoialty?'
         *We have another package confrontlng.ue
    that contains 2 3/4 pounds of 'wheat flour'.
    This flour is reconmenaed for several purposes
    and oan be used for ailypurpose for which others
    high grade wheat flours can be ,uaed. It is
    paokerlin a cardboard carton and labelad 'cake
    flour' but it Is not a 'pregared aake flour'
    having additional ingreaientsadded. The claim
    of the manufacturerIs that it le exempt from
    the provisions of the a& unclerthe term of
    8eotion 4.
         'The eeaond question is, ehould only '~-FL-
    p-4   cake flour' be exempt from the provlalone
    of the aot or should any 'wheat flour' labeled
    by the manufactureras 'cake flour' be exempt7
         *The third question is, should only Iore-
    ps&   spaoialtiee'be,exempt from the provmone
    of the law or should any 'wheat flour' or 'other
    cereal flour' pack~edin containersof 6 pounds
    or less and cleclaredby the manufacturerto be
    a specialty be exempt from the sot?"
          The answer to each of your questions will depend
upon a proper interpretationof the exemptionprovided In
Section4 for *any product such as prepared pancake flour,
aakc flour or other speoialty pcked and distributed in
the identifiedoriginal pa&ace, the netcontents of which
are five (5) pounds or less.* The caption OS the Aot provides
..._s-




         DepartmentOS Agriculture,Page 4



         for thie exoeptlon In the following language, *and such
         preparedproducts of wheat or oorn selling In less than
         five (5) pounadots.@
                The word *preparedwIK defined by Webster as
      "maderzady, fit, or suitable beforehand;adopted, ready,
         *   l  It has been Judiciallydefined In oonneotlon
                 .   .

      ulth goods as UputtIngthem in a state for use," (People
      v. Woolen,291 N. Y. Eupp. 665, 666, 161 MEO.  256); or
      as goods which have been advanced from their raw or natural
     ‘stetetowards the condition of their ultimate use. United
      State8v. Conkey and Co., 12 Ct. CUSt. App. 552, 555.
               For example."preparedprunes" are prunes that
     are first dried then stewed in sugar syrup and finally
     sealed In cans. UatIonal Grocery Co. v. ?ratt-Low Pre-
     eervingCo. 170 Wash. 575, 17 Tao. (2d) 51, 52. "Prepared
P    flour" may ie aselS-rIsIngflour", that la, flour (wheat,
     buckwheat,corn) with baking powder ana salt In the right
     proportions(webeter);or, flour with salt, soda, and
     phosphateadded in proper proportions and properly mixed,
     used In making griddle cakes, biscuits, and other hot
     breads dr cakes. Royal SalringCo. v. Federal Trade Comm.
     (C.C.A.)56 Fed. (2d) 581, 562. As stated by the author
     of ExxperlmentalCookery flour terminologyhas become con-
     rusing and, a speciallyprepared oake flour may be some-
     thing entirely different.
               Plain flour, wheat flour or white flour Is the
     Sine gralned product obt?lned in the commercialuIlllng
     OS wheat, and consists essentiallyof the stsroh and
     gluttenof the endosnerm. Vhole-wheat flour, entlre-
     wheat flour, or graham flour Is the product made by grind-
     Ing wheat and conteins in their natural proportions,
     811 of th; constltuents'ofthe cleaned grain. Definitions
     from Lone, ExoerImenta.1Cookery (2nd Ed:, 1937), John
     Wiley and Sons, 1GewYork.
               Flour may be made from either hard or soft wheat.
     'Cake Flour4 Is milled from eoft wheat. eencr.allra "short*
     Patent and the granulationvery fine. '(&erImentnl Cook-
Pi   %& 1 r'louremecially    orsonred for cskemakirq need not
     ascessarilycontain iXc14edincredlentfi.?fiechrrectcris-
     tics whI&merIf Its classlfIcatIonas a specialty, that Is,
     cake flour, may result entirely from the refining process.
/---
       Departmentof Agriculture,,
                                Page 6.



                 b'ebelieve that the phrase 'prepsredpancake
       .flour,cake flour or other speoIalty*refers to wheat
       products and blends paoked and distributed in identified
       original package6 of five pounds or less which are pre-
       Dared for special or limited uses. In addition, in order
       to meet the requirementsof a nspeclalty",the manuf'actur-.J
       er must hold the product out or offer it for such speolal
       or.limItedusse.
                 A *speoialtyais defined by Webster as, *an    r/
       objeat or class of obJeots distinguishedby some speoial
       characteristic,Individualquality, or the like,;especial- '
       ly,~a product,usunllymanufactured,of a special kind,
       made under a special patent, serving one special
                                                   _~ purnose,
                                                         -:.~~
       eta:                                  __

                 The qualities of a specialty ae'applied to flour
       mrryresult not only from the process by whioh it is made
       (differingfrom the usual), and the consumer use toward
i--    which It is directed, but also from limitationsupon con-
       sumer u6e.
                 It is well known that the consumingpublic buys
       considerablymore *lIght6,than *whole-wheat"flour. It Is
       likewise true that whole-wheat sgeolaltiea,flour and meal
       made from the whole grsin, useful, for example, in making
       whole-wheatmuffins or bread, spolls more quickly beoa~use
       of weavll infestationthan refined flour, and purchas@of
       such flour for modorate consumer use should be and are In
       relatively small quantities. See Wllmot and Batjer, Food
       F'orthe Fsmllx, J. B. Lippincott Co., 1938.
                 Applying these tests, in answer to your first
       question, If the genrral:purpose*whole-wheatflourY Is
       otherwiseexempt under Section 4 of Article 1042s Gf'Vernon's
       Penal Code and Is prepared for and held out to the publio
       at3a RspecIaltynIt will be exempt from the size require-
       ments of Section 1.                                          _'
                 Likewise, in answer to your second question, if
       the %rhoZe-whes.tflour” there Bescribed is prepared for
       and held out to the publio as a "oake flour', It will be
       exempt.
,-,               your third question Is a general one and can
        only be answered by applying the tests before given. lf
    Departmentof Agriculture,Page 6



    a produot Is prepared for a soeclal use or uses and Is
    offered or held out to the pub110 as such a *speoialtyn
    It may be so exempt.
                                      Very truly your6
                                 ATTORNEY GENERAL OF TEXAS

       i"LRSTASSISTANT
       A'XJRNEYGEN-              BY
    JD6:Ll-S
                                                  Aesistmt




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