U.S. Supreme Court UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938)

[Page 304 U.S. 144, 149]

House Committee on Agriculture, H.R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen.Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public. [Footnote 2]

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a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult. [Footnote 3]

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Third. We may assume for present purposes that no pronouncement of a Legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty, or property had a rational basis.

But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. [Footnote 4] See Metropolitan Casualty Ins. Co. v. [Page 304 U.S. 144, 155]

Mr. Justice BLACK concurs in the result and in all of the opinion except the part marked 'Third.'

Mr. Justice McREYNOLDS thinks that the judgment should be affirmed.

Mr. Justice CARDOZO and Mr. Justice REED took no part in the consideration or decision of this case.

Mr. Justice BUTLER.

I concur in the result. Prima facie the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial it may introduce evidence to show that the declaration of the act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K.C.R.R. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217. The provisions on which the indictment rests should if possible be construed to avoid the serious question of constitutionality. Federal Trade Comm. v. Amer. Tobacco Co., 264 U.S. 298, 307, 44 S.Ct. 336, 337, 32 A.L.R. 786; Panama R.R. Co. v. Johnson, 264 U.S. 375, 390, 44 S.Ct. 391, 395; Missouri Pac. R.R. v. Boone, 270 U.S. 466, 472, 46 S.Ct. 341, 343; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 198. If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U.S. 402, 412, 413 S., 46 S. Ct. 320, 322. See People v. Carolene Products Co., 345 Ill. 166, 177 N.E. 698. Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E. 2d 447; Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the indictment that Milnut 'is an adulterated article of food, injurious to the public health,' tenders an issue of fact to be determined upon evidence. Footnotes

Footnote 1 The relevant portions of the statute are as follows:'Section 61. ... (c) The term 'filled milk' means 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 imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated.''s 62. ... It is declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to ... ship or deliver for shipment in interstate or foreign commerce, any filled milk.'

Section 63 imposes as penalties for violations 'a fine of not more than $1,000 or imprisonment of not more than one year, or both.'

Footnote 2 The reports may be summarized as follows: There is an extensive commerce in milk compounds made of condensed milk from which the butter fat has been extracted and an equivalent amount of vegetable oil, usually coconut oil, substituted. These compounds resemble milk in taste and appearance and are distributed in packages resembling those in which pure condensed milk is distributed. By reason of the extraction of the natural milk fat the compounded product can be manufactured and sold at a lower cost then pure milk. Butter fat, which constitutes an important part of the food value of pure milk, is rich in vitamins, food elements which are essential to proper nutrition, and are wanting in vegetable oils. The use of filled milk as a dietary substitute for pure milk results, especially in the case of children, in undernourishment, and induces diseases which attend malnutrition. Despite compliance with the branding and labeling requirements of the Pure Food and Drugs Act, 21 U.S.C.A. 1 et seq., there is widespread use of filled milk as a food substitute for pure milk. This is aided by their identical taste and appearance, by the similarity of the containers in which they are sold, by the practice of dealers in offering the inferior product to customers as being as good as or better than pure condensed milk sold at a higher price, by customers' ignorance of the respective food values of the two products, and in many sections of the country by their inability to read the labels placed on the containers. Large amounts of filled milk, much of it shipped and sold in bulk, are purchased by hotels and boarding houses, and by manufactures of food products, such as ice cream, to whose customers labeling restrictions afford no protection.

Footnote 3 There is now an extensive literature indicating wide recognition by scientists and dietitians of the great importance to the public health of butter fat and whole milk as the prime source of vitamins, which are essential growth producing and disease preventing elements in the diet. See Dr. Henry C. Sherman, The Meaning of Vitamin A, in Science, Dec. 21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition, 1929 Ed., pp. 134, 170, 176, 177; Dr. A. S. Root, Food Vitamins (N. Car. State Board of Health, May, 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and Nutrition (1932), p. 367; Dr. Mary S. Rose, The Foundations of Nutrition. 1933, p. 237.

When the Filled Milk Act was passed, eleven states had rigidly controlled the exploitation of filled milk, or forbidden it altogether. H. R. 365, 67th Cong., 1st Sess. Some thirty-five states have now adopted laws which in terms, or by their operation, prohibit the sale of filled milk, Ala.Agri.Code 1927, 51, art. 8; Ariz.Rev.Code Supp.1936, 943Y; Pope's Ark.Dig.1937, 3103; Deering's Cal.Code, 1933 Supp., tit. 149, Act 1943, p. 1302; Conn.Gen.Stat.1930, 2487, c. 135; Del.Rev.Code 1935, 647; Fla.Comp.Gen.Laws 1927, 3216, 7676; Ga.Code 1933, 42-511; Idaho Code 1932, 36-502 to 36-504; Smith-Hurd Stats.Ill. c. 56 1/2, 19c-19e; Jones Ill.Stat.Ann., 1937 Supp. 53.020(1), (2), (3); Burns' Ind.Stat. 1933, 35-1203; Iowa Code 1935, 3062; Kan.Gen.Stat.1935, 65-707; Md.Ann. Code, art. 27, 281; Mass.Ann.Laws, 1933, c. 94, 17A; Mich.Comp.Laws 1929, 5358; Mason's Minn.Stat.1927, 3926; Mo.Rev.Stat.1929, 12408- 12413, Mo.St.Ann. 12408-12413, pp. 404-406; Mont.Rev.Code, Anderson and McFarland, 1935, c. 240, 2620.39; Neb.Comp.Stat.1929, 81-1022; N.H.Pub. Laws 1926, v. 1, c. 163, 37, p. 619; R.S.1937, 24:10-92, N.J.Comp.Stat. 1911-1924, 81-8j, p. 1400; N.Y.Cons.Laws 1930, Agriculture and Markets Law, 60, c. 1, Consol.Laws, c. 69; N.D.Comp.Laws, 1913-1925, c. 38, 2855(a) 1; Page's Ohio Gen.Code, 12725; Purdon's Penna.Stat. tit. 31, 553, 582; S.D.Comp.Laws, 1929, c. 192, 7926-0, p. 2493; Williams Tenn. Code, 1934, c. 15, 6549, 6551; Vernon's Tex.Pen.Code, tit. 12, c. 2, art. 713a, pp. 20, 21; Utah Rev.Stat.1933, 3-10-59, 3-10-60; Vt.Pub.L.1933, tit. 34, c. 303, 7724, p. 1288; Va.1936 Code, 1197c; W.Va. 1932 Code, 2036; Wis.Stat., 11th Ed. 1931, c. 98, 98.07, p. 1156; cf. N.Mex.Ann. Stat., 1929, 125-104, 125-108. Three others have subjected its sale to rigid regulations. Colo.L.1921, c. 30, 1007, p. 440; Or.1930, Code, v. 2, c. 12, 41-1208 to 41-1210, p. 3281; Remington's Wash.Rev.Stat., v. 7, tit. 40, c. 13, 6206, 6207, 6213, 6214, pp. 360-363.

Footnote 4 There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369, 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, , 58 S.Ct. 666, decided March 28, 1938.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 88 A.L. R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697, 713-714, 718-720, 722, 51 S.Ct. 625, 630, 632, 633; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 73 A.L.R. 1484; Fiske v. Kansas, , 47 S.Ct. 655;

Whitney v. California, 274 U.S. 357, 373-378, 47 S.Ct. 641, 647, 649; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, , 45 S.Ct. 571, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628; Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, decided February 14, 1938, note 2, and cases cited.