Opinion — Hebe Co. v. Shaw

SUPREME COURT OF THE UNITED STATES.

No. 664.—Ocroser TERM, 1918.

The Hebe Company and Carnation Milk)

Products Company, Appellants,

vs.

Norman FE. Shaw, Secretary of Agricul-$

ture of Ohio, and Thomas C. Gault,

Chief of Bureau of Dairy and Foods of

the Board of Agriculture of Ohio.

Appeal from the District

Court of the United

States for the South-

ern District of Ohio.

[January 7, 1919.|

Mr. Justice Homes delivered the opinion of the Court.

This is a bill in equity brought to restrain prosecutions threatened

against the plaintiffs and their customers for selling a food product

of the plaintiffs called Hebe, the bill being based upon the destruc-

tion of the plaintiffs’ business which it is alleged will ensue. The

prosecutions are threatened mainly or wholly under certain statutes

of Ohio which, the plaintiffs argue, do not bear the construction

put upon them by the defendants, or, if they do, are bad under the

Fourteenth Amendment to the Constitution of the United States

and the Commerce Clause. Article I, Section 8. A similar ease

was heard before three judges. By agreement the evidence in

that case was made the evidence in this. The District Judge

adopted the opinion of the three and dismissed the bill.

Hebe is skimmed milk condensed by evaporation to which six

per cent. of cocoa nut oil is added by a process that combines the

two. {t is sold in tin cans containing one pound or six ounces of

the product and labelled ‘‘Hebe A Compound of Evaporated

Skinmed Milk and Vegetable Fat Contains 6% Vegetable Fat,

24; Total Solids.’’ with the place of manufacture and address of

the Hebe Company. On the side of the label are the words ‘‘ For

Coffee and Cereals For Baking and Cooking.’’ By § 12725 of the

General Code of Ohio ‘‘Whoever manufactures, sells, exchanges,

exposes or offers for sale or exchange, condensed milk unless it

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2 The Hebe Co. and Carnation Milk Products Co. vs. Shaw.

has been made from . . . unadulterated . . . milk, from

which the cream has not been removed and in which the Proportion

of milk solids shall be the equivalent of twelve per cent. of milk

solids in crude milk, twenty-five per cent. of such solids being fat,

and unless the package, can or vessel containing it is distinetly

labelled, stamped or marked with its true name, brand, and by

whom and under what name made’’, is subject to a fine, and for

each subsequent offense to a fine and imprisonment. The first

question is whether Hebe falls within these words.

It is argued that, as Hebe is a wholesome or not unwholesome

product, the statutes should not be construed to prohibit it jf

such a construction can be avoided, and that it ean be avoided by

confining the prohibition to sales of condensed milk as such, under

the name of condensed milk, as was held with regard to ice cream

in Hutchinson Ice Cream Company v. Iowa, 242 U. 8. 153. But the

statute could not direct itself to the product as distinguished from

the name more clearly than it does. You are not to make a certain

article, whatever you call it, except from certain materials—the

object plainly being to secure the presence of the nutritious elements

mentioned in the act, and to save the public from the fraudulent

substitution of an inferior product that would be hard to detect.

Savage v. Jones, 225 U. 8. 501, 524. By § 5778 a food is adulterated

if a valuable ingredient has been wholly or in part abstracted from

it, and the effect of this provision upon skimmed milk is qualified

only by § 12720 which states the stringent terms upon which alone

that substance can be sold. It seems entirely clear that condensed

skimmed milk is forbidden out and out. But if so the statute

cannot be avoided by adding a small amount of cocoa nut oil. We

may assume that the product is improved by the addition, but the

body of it still is condensed skimmed milk, and this improvement

consists merely in making the cheaper and forbidden substance

more like the dearer and better one and thus at the same time more

available for a fraudulent substitute. It is true that so far as the

question of fraud is concerned the label on the plaintiffs’ cans tells

the truth—but the consumer in many cases never sees it. Moreover

when the label tells the public to use Hebe for purposes to which

condensed milk is applied and states of what Hebe is made, it more

than half recognizes the plain fact that Hebe is nothing but con-

densed milk of a cheaper sort.

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EET OIE AEG ENA AAA AITN TS BI LT EE LEIP IE MEE ER OS ELE MIE IN _—

The Hebe Co. and Carnation Milk Products Co. vs. Shaw. 3

We are satisfied that the statute as construed by us is not in-

validated by the Fourteenth Amendment. The purposes to secure

a certain minimum of nutritive elements and to prevent fraud

may be carried out in this way even though condensed skimmed

milk and Hebe both should be admitted to be wholesome. The

power of the legislature ‘‘is not to be denied simply because some

innocent articles or transactions may be found within the pro-

seribed class. The inquiry must be whether, considering the end

in view, the statute passes the bounds of reason and assumes the

character of a merely arbitrary fiat.’ Purity Extract & Tonic Co.

v. Lynch, 226 U. 8. 192, 204. If the character or effect of the

article as intended to be used ‘‘be debatable, the legislature js

entitled to its own judgment, and that judgment is not to be super-

seded by the verdict of a jury,’’ or, we may add, by the personal

opinion of judges, ‘‘upon the issue which the legislature has de-

cided.’’? Price v. Illinois, 238 U. S. 446, 452. Rast v. Van Deman

& Lewis Co., 240 U. S. 342. 357. The answer to the inquiry is

that the provisions are of a kind familiar to legislation and

often sustained and that it is impossible for this Court to say

that they might not be believed to be necessary in order to accom-

plish the desired ends. See further Atlantic Coast Line R. R. Co.

v. Georgia, 234 U. S. 280, 288.

With regard to the other objection urged, the statute ‘‘was not

aimed at interstate commerce but without discrimination sought to

promote fair dealing in the described articles of food.’’ Savage

v. Jones, 225 U.S. 501, 524. The defendants disclaim any intention

to interfere with the sale of the goods in the original packages by

the consignee, and if the record is thought to raise a doubt with

regard to that it may be met by a modification of the decree so as to

leave it without prejudice in case prosecutions should be threatened

or attempted for such sales. Some question was raised as to

whether the individual can was not to be regarded as the original

package. But it appears that the cans are brought from Wisconsin,

where Hebe is manufactured, into Ohio in fibre cases containing

forty-eight one-pound cans or ninety-six six-ounce cans. The eases

are the original packages so far as the present question is con-

cerned, Austin v. Tennessee, 179 U. S. 343, although no doubt, as

shown by McDermott v. Wisconsin, 228 U. S. 115, 136, the power

of Congress to regulate interstate commerce would extend for some

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The Hebe Co. and Carnation Milk Products Co. vs. Shaw.

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purposes to the cans. The Food and Drugs Act of June 30, 1906,

¢, 3915, 34 Stat. 768, dealt with in McDermott v. Wisconsin, does not

prevent state regulation of domestic retail sales. Armour & Co. y,

North Dakota, 240 U.S. 510, 517. Weigle v. Curtice Brothers Co.,

decided today. Indirect effects upon interstate commerce do not

invalidate the act. Sligh v. Kirkwood, 237 U.S. 52, 61. Savage

v. Jones, 225 U.S. 501, 525,

Decree affirmed.

A true copy.

Test:

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SUPREME COURT OF THE UNITED STATES.

No. 664—Ocroser TERM, 1918.

The Hebe Company and Carnation Milk)

roducts C any, J lV: ; ae

Products Company, Appellants Appeal from the District

VS. :

Court of the United

‘orman E. Shaw, Seeretary of Agricul- : ‘

opcoracs . s a States for the South-

ture of Ohio, and Thomas C. Gault, ‘in Cates: at Oe

Chief of Bureau of Dairy and Foods of ;

the Board of Agriculture of Ohio.

[January 7, 1919.]

Mr. Justice Day, with whom concurred Mr. Justice VAN DEVANTER

and Mr. Justice BraNnpets, dissenting.

The right to prohibit the sale of plaintiffs’ product in the

State of Ohio is mainly rested upon Section 12,725 of the Gen-

eral Code of that State. In the absence of a construction by the

Supreme Court of Ohio, we must interpret the statute ourselves.

We have been unable to come to the conclusion, reached by the

majority of the court, as to the meaning of the law. As the

result of this decision is to exclude from sale in the State of Ohio,

a food product not of itself harmful, but shown to be wholesome,

we shall briefly state the reasons which impel the dissent.

Section 12.725 of the General Code of Ohio reads:

“Whoever manufactures, sells, exchanges, exposes or offers for

sale or exchange, condensed milk unless it has been made from pure,

clean, fresh, healthy, unadulterated and wholesome milk, from which

the eream has not been removed and in which the proportion of milk

solids shall be the equivalent of twelve per cent. of milk solids in

crude milk twenty-five per cent. of such solids being fat, and unless

the package, can or vessel containing it is distinctly labeled, stamped

or marked with its true name, brand, and by whom and under what

name made, shall be fined not less than fifty dollars nor more than

two hundred dollars, and, for each subsequent offense, shall be

fined not less than one hundred dollars nor more than five hundred

dollars and imprisoned not less than ten days nor more than ninety

days.”’

The statute defines a crime, and the question is not different than

it would be if the plaintiffs were indicted for its violation. While

2 The Hebe Co. and Carnation Milk Products Co. vs. Shaw.

all statutes are to receive a reasonable interpretation, those of a

criminal nature are not to be extended by implication. Con.

densed milk when this statute was passed was well known to

be milk from which a considerable portion of water had been evap-

orated. Condensed milk to be what its name imports must be made

from whole milk. If not so manufactured, the legislature has

the right to provide that the public shall be advised of the treat-

ment to which it has been subjected. Skimmed milk, conspie-

uously labelled as such, may be sold in the State of Ohio. (See,

12,720, Gen. Code, Ohio.) The legislature has shown no intention

to condemn it as an unwholesome article of food. It is not less

so when condensed.

We are unable to find in these statutes anything which prohibits

the sale of condensed, skimmed milk when it is a part of a whole-

some compound sold for what it really is, and distinctly labeled

as such. In the section under consideration, 12,725, the Ohio

legislature was not dealing with compounds. It was under-

taking to assure the purity of a well-known article of food—con-

densed milk. The statute provides that such condensed milk so

offered for sale shall be made of pure, clean, fresh, unadulterated

and wholesome milk from which the cream has not been removed,

and that the can containing it shall be distinctly labeled with its

true name. With deference to the contrary view, it seems to us

that reading the statute in the light of its purpose to require eon-

densed milk to be made from whole milk and sold for what it is,

the necessary result is to exclude the plaintiffs’ compound from

the words and meaning of the Act. It is not evaporated

milk, and makes no pretense of being such. It is a food compound

consisting in part of condensed skimmed milk. It is so labeled in

unmistakable words in large print on the can containing it. The

label states with all the emphasis which large type can give that

it is a compound made of ‘‘evaporated skimmed milk and vegetable

fat.’’ The proportions of the ingredients are stated. The striking

label does not describe condensed milk, and he who reads it cannot

be misled to the belief that he is buying that article. It is shown

to be wholesome and clean and free from impurities.

It seems to us that the case is within the principle stated by

this court in Hutchinson Ice Cream Company v. Iowa, 242 U. S.

153, in which a statute forbidding the sale as ice cream of an

article not containing a certain portion of butter fat was sustained

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The Hebe Co. and Carnation Milk Products Co. vs. Shaw. 3

as within the police power of the State. The statute was con-

strued by the highest court of the State where it was produced to

include articles sold as ice cream; thus interpreted, we held it to

be a constitutional exercise of the police power of the State. So

here, we think the legislature of Ohio intended to deal with con-

densed milk when sold as such, and to make it an offense to sell

it when of less than the required purity.

It may be conceded that the statute would include such an article

when not up to the standard, but sold for the real thing. The

public is entitled to protection from deception as well as from

impurity. This principle seems to have controlled the decision of

the District Court. The record discloses that in one or more in-

stances dealers had supplied this article as condensed milk. But

- an act or two of this sort by fraudulent dealers ought not to be

the test of the plaintiffs’ right, or control the meaning of this

statute. If such were the case, very few food compounds would

escape condemnation. The few instances of deception shown had

not the sanction of plaintiffs’ authority. Such acts did violence

to the plain terms in which the plaintiffs printed label disclosed

that its product was a compound and defined its parts. The label

so truly expresses just what the substance is, that it is difficult to

believe that any purchaser could be deceived into buying the

article for something other than it is.

The interdiction of the State Board is not against the sale of this

article as condensed milk, but of all sales of this compound in the

State of Ohio. In our view this criminal statute, rightly interpreted,

does not embrace the plaintiffs’ product, and that reason alone

should be sufficient to warrant a reversal of the decree.

A true copy.

Test:

Clerk, Supreme Court, U. 8.

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