Dairy Foods and Imitations: Legal Aspects, Standards, and Definitions

Abstract

When we speak of the Federal law applicable to modified dairy prducts, we mean essentially the Federal Filled Milk Act (21 U.S. Code, Sec. 61 to 64). This statute, enacted by Congress in 1923, casts a long shadow over the entire dairy product regulation. The Filled Milk Act, in Section 1, defines the term to mean any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated. Section 2 of the Act declares in no uncertain terms that filled milk, as so defined, is an adulterated article of food and is injurious to the public health, and its sale constitutes a fraud upon the public. I t is declared to be unlawful for any person to deliver any filled milk for shipment in interstate or foreign commerce. The constitutionality of the Act has been sustained by the Supreme Court of the United States in two cases. The same product was involved in both cases, except that in the second case the product had been fortified with vitamins and minerals so that it had virtually the same nutritive values as evaporated milk. The product was essentially a compound of skimmed evaporated milk and coconut oil. The Court held that it was within the province of Congress to decide whether these products should be permitted to be sold in interstate commerce, and that the prohibition of such sales was not violative of due process of law. Congress has plenary authority, the Court declared, to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare. The Court found the danger of fraud to be magnified where the product in question is indistinguishable from a valuable food of almost universal use, thus facilitating fraudulent distribution and rendering the protection of the consumer more difficult. Whether tbe public would be adequately protected by the prohibition of false labels and misbranding, and whether it was necessary to prohibit the substitute product altogether when the two products are not distinguishable is a matter of legislative judgment. The fact that there is a federal statute specifically dealing with filled milk may cause us to be unmindful of federal laws of more general application. Here I have most particularly in mind Section 403 of the Federal Food, Drug, and Cosmetic Act, and especially the provisions of Subsections (e) and (g) thereof. Subsection 403 (c) prescribes that a food shall be deemed to be misbranded if it is an of another food, unless its label bears, in type of uniform size and prominence, the word imitation and, immediately thereafter, the name of the food imitated. Subsection 403 (g) declares that a food shall be deemed to be misbranded if it purports to be, or is represented as, a food for which a definition and standard of identity has been prescribed by regulations as provided by Section 401 of the Act, unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard, and insofar as may be required by such regulations, the common names of optional ingredients present in such food. In this broader context, it is important to note another case decided by the United States Supreme Court which, while not involving a dairy product, is probably the leading federal case in the area of products in general. This is the case of 62 Cases of Jam vs. United States (1951), 340 U.S. 593. In this case, the Supreme Court upheld as lawful for interstate commerce a product which did not comply with the federal standard of identity for jam, in that it contained only 25% fruit instead of the required 45%. The manu-