Stanley Forman Reed

“ Such would be the prohibition of the shipment of cotton or silk textiles to protect rayon or nylon or of anthracite to aid the consumption of bituminous coal or of cottonseed oil to aid the soybean industry. Here a milk product, skimmed milk, from which a valuable element-butterfat-has been removed is artificially enriched with cheaper fats and vitamins so that it is indistinguishable in the eyes of the average purchaser from whole milk products. ”

“ Although, so far as the record shows, filled milk compounds as enriched are equally wholesome and nutritious as milk with the same content of calories and vitamins, they are artificial or manufactured foods which are cheaper to produce than similar whole milk products. When compounded and canned, whether enriched or not, they are indistinguishable by the ordinary consumer from processed natural milk. ”

“ Petitioners rely upon the admitted fact that no ingredient is added to the skim milk, oil and vitamins to alter the appearance of the compound. Accepting the evidence that the compounds are indistinguishable from whole milk products by purchasers, it is urged that they cannot be held to be in 'imitation or semblance' of milk unless the manufacturer purposefully adds something to make the mixture simulate milk. ”

“ Petitioners then offered in the trial court to prove that since the passage of the Filled Milk Act in 1923, the technique of fortification of foods with vitamins A and D had advanced to a point where these vitamins could be restored to skim milk compounds so that the compounds were equally valuable in that respect to whole milk products and that their products had been so enriched. ”

“ Finally, as determinative of the intention of Congress to include compounds whose resemblance to milk products arises from their ingredients and not from conscious effort, we note the fact that compounds of this innocent character were specifically included by name in the list of compounds which the Congressional reports pointed out as products which were covered by the proposed act. [12] Petitioner's compounds were themselves so named. The addition of vitamins does not affect their physical likeness to milk products. ”

“ Since these enriched compounds are admittedly wholesome and sold under trade names with proper labels without the commission of any fraud by petitioners on the public, Congress cannot prohibit their interstate shipment without denying to petitioners a right protected by the due process clause, the right to trade in innocent articles. ”

“ But, petitioners contend, they do not fall within its spirit, since the vitamins which cause deficiency have been restored and that therefore the act is inapplicable to the enriched compounds within that rule of statutory construction, as illustrated by Rector, etc., of Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226; United States v. AEtna Explosives Co., 256 U.S. 402, 41 S.Ct. 513, 65 L.Ed. 1013, and other cases, which excludes from the coverage of a statute things or situations which are beyond the legislative intent. ”

“ A number of surveys in various parts of the country show that the compound is sold largely in sections inhabited by people unable to read English and sections inhabited by people of limited means, and not sold at all in better residential districts.' Cf. ”

“ Prior to that time, the Court of Appeals of New York, in construing the words 'imitation or semblance' as they appeared in another section of the New York law directed at the regulation of oleomargarine, had interpreted them as denouncing trade in oleomargarine only when the manufacturer consciously and purposefully attempted to create an imitation or semblance of milk products. People v. ”

“ Henderson Co. v. Thompson, 300 U.S. 258, 57 S.Ct. 447, 81 L.Ed. 633, upholding the validity of a state statute prohibiting the use of sweet natural gas for the manufacture of carbon black (see also Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276) ; and Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724, holding valid an administrative regulation prohibiting manufacture of 'farina' enriched solely with vitamin D.↑ Sec. 64 (3) . ”