Laws forbidding the sale, offering for sale, etc., as "Ice
Cream" of any article not containing butter fat in reasonable
proportion fall fairly within the state police power.
The fact that the name "Ice Cream," as commonly used, includes
many compounds which are entirely wholesome yet contain no cream or
butter fat, does not render such legislation arbitrary or
unreasonable, but tends rather to support it as serving to prevent
the public from being misled in the purchase of a food article of
general consumption.
Whether the state may prohibit the sale of wholesome products if
the public welfare seems to require such action is a question not
involved in these cases.
168 Ia. 1, 245 Pa.St. 554, affirmed.
The case is stated in the opinion.
Page 242 U. S. 156
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
These cases were argued together. In each, a state statute which
prohibits the sale of ice cream containing less than a fixed
percentage of butter fat is assailed as invalid under the
Fourteenth Amendment; the supreme court of each state having held
its statute constitutional.
State v. Hutchinson Ice Cream
Co., 168 Ia. 1;
Commonwealth v. Crowl, 245 Pa. 554.
Iowa makes 12 percent the required minimum; Pennsylvania 8 percent.
The material provisions of the several statutes are copied in the
margin. [
Footnote 1]
Page 242 U. S. 157
The right of the state under the police power to regulate the
sale of products with a view to preventing frauds or protecting the
public health is conceded by plaintiffs in error. And they do not
contend that the particular percentages of butter fat set by Iowa
and Pennsylvania are so exacting as to be in themselves
unreasonable. Thirteen other states have by similar legislation set
14 percent as the minimum; five other states 12 percent; only eight
states have fixed a percentage as low as Pennsylvania; and
Page 242 U. S. 158
the United States Department of Agriculture has declared 14
percent to be standard. [
Footnote
2] The main objection urged is this: to require that ice cream,
in order to be legally salable, must contain some butter fat is a
regulation so unreasonable and arbitrary as to be a deprivation of
property without due process of law and a denial of the equal
protection of the laws. To support this contention, the following
trade facts are shown:
The ice cream of commerce is not iced or frozen cream. It is a
frozen confection -- a compound. The ingredients of this compound
may vary widely in character, in the number used, and in the
proportions in which they are used. These variations are dependent
upon the ingenuity, skill, and judgment of the maker, the relative
cost at a particular time or at a particular place of the possible
ingredients, and the requirements of the market in respect to taste
or selling price. Thus, some Philadelphia ice cream is made of only
cream, sugar, and a vanilla flavor. In making other Philadelphia
ice cream, the whites of eggs are added, and according to some
formulas vanilla ice cream may be made without any cream or milk
whatsoever -- for instance, by proper manipulation of the yolks of
eggs, the whites of eggs, sugar, syrup, and the vanilla bean. All
of these different compounds are commonly sold as ice cream, and
none of them is necessarily unwholesome.
Plaintiffs in error contend that as ice cream is shown to be a
generic term embracing a large number and variety of products, and
the term as used does not necessarily imply the use of dairy cream
in its composition, it is arbitrary and unreasonable to limit the
ice cream of commerce to that containing a fixed minimum of butter
fat. But the legislature may well have found in these facts
persuasive
Page 242 U. S. 159
evidence that the public welfare required the prohibition
enacted. The facts show that, in the absence of legislative
regulation, the ordinary purchaser at retail does not and cannot
know exactly what he is getting when he purchases ice cream. He
presumably believes that cream or at least rich milk is among the
important ingredients, and he may make his purchase with a
knowledge that butter fat is the principal food value in cream or
milk. Laws designed to prevent persons from being misled in respect
to the weight, measurement, quality, or ingredients of an article
of general consumption are a common exercise of the police power.
The legislature defines the standard article or fixes some of its
characteristics, and it may conclude that fraud or mistake can be
effectively prevented only by prohibiting the sale of the article
under the usual tradename, if it fails to meet the requirements of
the standard set. Laws prohibiting the sale of milk or cream
containing less than fixed percentages of butter fat present a
familiar instance of such legislation. Cases in the state courts
upholding laws of this character are referred to in the margin.
[
Footnote 3] This Court has
repeatedly sustained the validity of similar prohibitions.
Schmidinger v. Chicago, 226 U. S. 578;
Armour & Co. v. North Dakota, 240 U.
S. 510.
It is specially urged that the statutes are unconstitutional
because they do not merely define the term "ice cream;" but
arbitrarily prohibit the sale of a large variety of wholesome
compounds theretofore included under the name "ice cream." The acts
appear to us merely to prohibit the sale of such compounds as ice
cream. Such is the construction given to the act by the Supreme
Court of Iowa.
Page 242 U. S. 160
State v. Hutchinson Ice Cream Co., 168 Ia. 1, 15, which
is, of course, binding on us. We cannot assume, in the absence of a
definite and authoritative ruling, that the Supreme Court of
Pennsylvania would construe the law of that state otherwise. The
conviction here under review was for selling the "compound" as ice
cream, so that we are not called upon to determine whether the
state may, in the exercise of its police power, prohibit the sale
even of a wholesome product if the public welfare appear to require
such action -- and if, as here, interstate commerce is not
involved.
See Powell v. Pennsylvania, 127 U.
S. 678,
127 U. S. 685;
Schollenberger v. Pennsylvania, 171 U. S.
1,
171 U. S. 15.
In view of the conclusion stated above, it is unnecessary to
consider whether the statutes are or are not sustainable as health
measures, and upon this we express no opinion.
The judgment in each case is
Affirmed.
* Pursuant to stipulation, the case of
Sanders Ice Cream Co.
et al. v. Iowa, No. 39, October Term, 1916, in error to the
Supreme Court of the Iowa, was argued on the record in the
Hutchinson case, supra, and disposed of in the same
way.
[
Footnote 1]
Iowa: Code Supp. 1913, § 4999-a20:
"No person, firm or corporation, . . . shall manufacture or
introduce into the state, or solicit or take orders for delivery,
or sell, exchange, deliver, or have in his possession with the
intent to sell, exchange or expose or offer for sale or exchange,
any article of food which is adulterated or misbranded, within the
meaning of this act."
Code Supp. 1913, § 4999-a31e:
"For the purpose of this act, an article of food shall be deemed
to be adulterated:"
"First. If any substance or substances has or have been mixed
and packed with it so as to reduce or lower or injuriously affect
its quality, strength or purity."
"Second. If any substance or substances has or have been
substituted wholly or in part for the article."
"Third. If any valuable constituent of the article has been
wholly or in part abstracted."
"Fourth. If it be an imitation of, or offered for sale, under
the specific name of another article, or if it does not conform to
the standards established by law."
Chap. 175, Acts 34th G.A. (1911), p. 192:
"
ICE-CREAM"
"1. Ice cream is the frozen product made from pure wholesome
sweet cream, and sugar, with or without flavoring, and if desired,
the addition of not to exceed one percent (1%) by weight of a
harmless thickener, and contains not less than twelve percent (12%)
by weight of milk fat, and the acidity shall not exceed three
tenths (3-10) of 1 percent (1%)."
Pennsylvania: P.L. 63, Purdon's Dig. vol. 5, p. 529:
"An act for the protection of the public health and to prevent
fraud and deception in the manufacture, sale, offering for sale,
exposing for sale, and having in possession with intent to sell, of
adulterated or deleterious ice cream; fixing a standard of butter
fat for ice cream; providing penalties for the violation thereof,
and providing for the enforcement thereof."
"SECTION 1.
Be it enacted, etc., That no person, firm
or corporate body, by himself, itself or themselves, or by his, her
or their agents, servants, or employees, shall sell, offer for
sale, expose for sale, or have in possession with intent to sell,
ice cream adulterated within the meaning of this act."
"SECTION 2. Ice cream shall be deemed to be adulterated within
the meaning of this act"
"
First. If it shall contain boric acid, formaldehyde,
saccharin, or any other added substance or compound that is
deleterious to health."
"
Second. If it shall contain salts of copper, iron
oxide, ochers, or any coloring substance deleterious to health;
Provided, That this paragraph shall not be construed to
prohibit the use of harmless coloring matter in ice cream, when not
used for fraudulent purposes."
"
Third. If it shall contain any deleterious flavoring
matter, or flavoring matter not true to name."
"
Fourth. If it be an imitation of, or offered for sale
under, the name of another article. . . ."
"SECTION 4. No ice cream shall be sold within the state
containing less than eight (8) percentum butter fat, except where
fruit or nuts are used for the purpose of flavoring, when it shall
not contain less than six (6) percentum butter fat."
[
Footnote 2]
The requirements of the several states are set forth in U.S.
Department of Agriculture (Bureau of Animal Industry) Circular 218,
on Legal Standards for Dairy Products.
[
Footnote 3]
State v. Schlenker, 112 Ia. 642;
State v.
Campbell, 64 N.H. 402;
People v. Bowen, 182 N.Y. 1;
State v. Crescent Creamery Co., 83 Minn. 284;
State v.
Stone, 46 La.Ann. 147;
Deems v. Baltimore, 80 Md.
164;
Commonwealth v. Wheeler, 205 Mass. 384;
St. Louis
v. Grafeman Dairy Co., 190 Mo. 507;
State v. Smyth,
14 R.I. 100.