665

        THE    A~~OORNE;Y          GENERAL
                    OF    TEXAS




                         August 22, 1950

Hon. Oeo. W, Cox, l&D.            opinion 150.v-1095.
State Health Officer
Department of Health              Rep The legality of market-
Austin, Texas                         lngmilk inTexas under
                                      a label bearing the word
Dear Sir:                             "fresh.'
          Reference is made to your recent request which
reaUs in part as follows:
         "Does Article 165-3, Section 4, Be-
    vised Civil Statutes, Texas 1937 Supple-
    ment prohibit the use of the word @freshs
    so placed on a label for graUe A pasteur-
    ized homogenized vitamin D milk that lt~
    would likely be interpretedas ref+rdng
    to the safety, sanitary quality or food
    value of the contents of a container so
    labelea?"
            Section 4 of Article 165-3, VXS,,    provides in
part:
         'No milk or milk products sold, pro-
    duced or offered for sale within this State
    by any person, firm, assoctition or corpora-
    tion shall carry a label, device or design
    marked 'graUe A' or OgradeB' or any other
    grade, statement, design or device, regard:
    Ing the safety, sanitary quall'tyor food
    value of the contents of the container
    a     is misleading or which does not con-
    form to the definitionsand re uirements of
    this Act.' (Underscoring ours. s
          Black's Law mctionarg (3rd Ed. 1933) defines
the word "fresh" as 'immediate,recent, followingwith-
out any material interval."iWebster's International
mctionary (2nd Ed. 1938) defines "fresha as "having
its original qualities unlmpairti."
          In City of Iiousvlllev. Rwlng Vol-Allmen Dairy
co., 105 S.W.2d 801,.802 (KyO Ct. of App. 1937), the
                                                             -     . .


666

      Hon. Geo. W. Cox, Mil.
                           D., page 2   (V-1095)


      court stated:
                *However,when the process (pas-
          teurization)Is complete,we have nothing
          left but milk, the same article an~¶raw
          material that comes fresh from a healthy
          cow by the hanas of a careful and clean
          milker, after it had been properly straln-
          0% and prepared for use by a first-class,
          clean and tlUy housewife. The milk, af-
          ter the pasteurizationis complete, con-
          tains the same ingre&lentsas It had In it
          when it came from the cow. It is only ma&e
          clean food to be used. It has lost none of
          Its palatable taste as when it came from a
          healthy cow. Still, it contains all of the
          ingredientsthat it formerly hacl."
                The above case was cited in Rieck-XcJunkin
      Dairy Co. v. School Dist, of Pittsburgh*66 A,2d 295,
      299 (Pa0 Sup. 1949), and there the court statedn   j
               "Homogenizationbreaks .upglobules of
          fat to prevent separation of cream from
          milk and results in untform Distribution
          of the fat content of the milk. o o 0 While
          some of the attributesof milk are changed
          by the process it Is not manufacturingin-
          to a new and different article. It also con-
          tinues to be ,soldas milk, PasteurizedanU'
          homogenizedv&tan&n D milk s.nUpasteurized
          chocolatemilk is milk with the addition, in
          one instance, of vitamin D concentratean&
          in the other, of chocolate and Sugar. . o .
          These products are sold as milk; the changes
          are essentiallyin the milk flavor, they are
          still use% as beverages and are not new an8
          different products in the sense of the defin-
          ition of manufacture."
                In view of the above definitionsar&interpre-
      tations, it Is the opinion of this office that the use of
      the word "fresh,' under the circumstances,is not mlsleacl-
      ing within the meaning of the statute, since it does not
      apply to and is not descriptiveof either the safet
      Ftary quality or food value of the contents of-r--==
                                                      he con-
      tainer.
Hon.   Qeo.   W. Cox,   M.D., page 3   (v-1095)
                                                                 667




            Section 4 of Article 165-3 of Ver-
       non's Civil Statutes does not prohibit
       the use of the word "fresh' on labels of
       Wade A pasteurizedhomogenizedvitamin
       D milk; since this term does not refer to
       either the safety, sanitary quality, or
       food value of the contents of the con-
       tainers so labeled.
APPROVEDI                                Yours very truly,
                                                    ~.,.
3. C. Davis, Jr.                           PRICE DANIEL
County Affairs Division                  Attorney.    penera

Everett Hutchinson
Executive Assistant          .
Charles D. Mathews                     a-/
First Assistant                                      Assistant
LT:llmmw