NEY GENERAL EXAS

June 7, 1965

Honorable John C. White Commissioner of Agriculture Opinion No. C-450 John H. Reagan Building Re: Whether the sale of cerAustin, Texas tain packages of sliced bread weighing less than one pound violates the provisions of Rule 5 of Article 719 ofVernon's Dear Mr. White: Penal Code.

You have requested the opinion of this office in connection with the followingquestions:

"1
. Does a 'loaf'of bread lose its identity and need for conformity to the law when the product isbaked in the usual fashionbut packaged in slices without end pieces and labeled as 'breadslices'with a total weight of less than a pound? "2. Under the circumstancesas above, would the elimination of the word 'bread'on the label and the substitutionof a descriptivephrase such as 'partyslices' or 'ryeslices' or similar term(s) exempt the product from provisions of the law? "3. If the slicesare packaged in a fashion as to dlstinguish.them somewhat from the usual pound or heavier loaf, can the wrap cause the bread to lose its identityas a 'loaf',andexempt it from the law? "4. Is it your opinion that themakers of the law intended the term 'loaf'as a general application to a unit ofmerchandisablebread or is the law limited to a bread productwhose sha e or YE%3a configurationhas, by commonusage, established 'loaf'?" Rule 5 of Article 719, Vernon's Penal Code,provides that:
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Hon. John C.White, page 2 (C-450)

"Breadto be sold by the loafmade by bakers engaged in the business of wholesaling and retailing bread, shallbe soldbased upon any of the following standards of weight and no other, namely: a loaf weighing one pound or 16 ounces, a loaf weighing 24 ounces or a pound and a half, and loavesweighing two pounds or 32 ounces, and loavesweighing three pounds, or some othermultiple of one pound or 16 ounces. These shallbe the standard of weight for bread to be soldby the loaf. Variations, or tolerance, shallnot exceed one ounce per pound over or under the said standardwithin a period of 24 hours after baking."

have In regard to the foregoing statuteand questionsyou set forth in your opinionrequest that: "The statutewas passed in 1921. In 1921, practicallyall the bread offered for salewas sold in a solid,uncut orundivided loaf and sold by the pound and othermultiples of a pound and sold as an unwrapped product. The wrapping of bread with labels on the wrapper descriptive of the contentswas unknown at that time and no such product as slicedbread or slicedrolls was being made then.
. . .' In Attorney General's OpinionNo. WW-290 (1957),the questionwas presented as to whether a one pound package of Rye Slices composed of two rows of slices in a cardboardbox with a cellophane overwrap couldbe legally sold in Texas in view of the provisions of Rule 5 of Article 719. In holding that such a sale was not in violation of Rule 5 of Article 719, it was stated in Attorney General'sOpinion No. WW-290 (1957)that:

"Thepurpose for prescribing standardweights for loaves of bread is to prevent the vendor from selling loaves of similar size as those of a larger size. 90 A.L.R. 1291. In the case of the product at hand, we fall to find any factorpresent which would tend tomislead the public. As a result of the packaging of the product, the buyermust purchase both rows of slices,which have an aggregate weight of one pound. Thus, it is logical,we believe, to hold that the purchaser is in fact getti;g Ialoaf' of bread which weighs one pound.

. . . In the case of PetersenRaking Co. v. Bryan, 290U.S. 570 (1934),theUnited States Supreme Court had before it the -2134-. -

Hon. John C. White, page 3 (c-450)

question of the validity of a statute of the State of Nebraska similar to Rule 5 of Article 719. The Court in its opinionupholding the validity of the statute stated that:

f!

. . .The fixing of a maximum weight for each size or class of loaves is not unreasonable. In Burns Baking Co. v. Bryan, 264 U.S. 504, we were called on to consider the constitutionalityof a similarmeasure. .Wewere there adverted to the undoubted power,of the State to protect purchasers of bread from impositionby the sale of short-weight loaves (Schmidingerv. Chicago, 226 U.S. 578, 588) and showed that the purpose of prescribingminimum weights Is to prevent sellers from palming off loaves ?f smaller size as those of a larger size.

. . . In view of the foregoing, it seems obvious that the intent of the Legislature in enactingRule 5 of Article 719 was to protect purchasers of bread from beingmisled by "short-weight" loaves or units of bread. The Legislature,by prescribing the variousweights that bread couldbe offered to the public for sale, was protecting theunwary from the unscrupulous. Such being the case,we are of the opinion that the use of the word "loaf" or 'loaves" in Rule 5 of Article 719 shouldnot be given a narrow or restrictive constructionwhichmight easily result in defeating the legislative intent. This viewpoint is well recognized as a cardinalrule of statutory construction. See 39 Tex.Jur., Section 110, Statutes.

We are therefore of the opinion that your first three questions shouldbe answered in the negative. The mere descriptive designation,manner of packaging ormethod of slicinga loaf or unit of bread will not operate to exempt the vendor of such bread from the requirements of Rule 5 of Article 719.

As to the remaining questionposed, we are of the opinion that it is the obvious legislative intent, in view of the foregoingauthorities, that the use of the word "loaf"or 'loaves' inRule 5 of Article 719 refers to a "unit"of bread being offered for sale rather than the bread's shape or configuration. SUMMARY

Themere descriptivedesignation,manner of packaging ormethod of slicinga loaf or unit of bread being offered for salewill not operate to

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exempt the vendor of suchbread from the requirements of Rule 5 of Article 719, Vernon's Penal Code. ,P.he

use of the word 'loaf" or 'loaves" in Rule $ of irticle 719,Vernon's Penal Code, refers to a unit of bread being offered for sale rather than the bread's shape and configuration. Very truly yours, WAGGONER CARR Attorney General

PB:mkh APPROVED: OPINION COMMITTEE 

## By:%k \s Pat Bailey Assistant

George Gray, III, Acting Chairman Bill Allen John Banks V. F. Taylor Bob Norris APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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