**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**

Gentlemen: Attention:Vs. W.

of Jenuary 11, 1941, requ partmentae to the type o from the requirements OZ whiohreads as fol.lows: mea6ur0 ol

ihe stnnaardmeaseolcagsa

conteining one and one-half, enty-live,SiSty,

atit shall be unlawful for

, aeeoclat2on,or corporation e, es11 or offer for sale in
(lnclufiirq

berrels, IWC:W, c=rtona an9 other containers)

of the above stemlard net weights. *%3-o. 3. That each package of whe.at Slour, other cereal Elour ~.n3. c9rn med ahall have the net weight, name 0S menufacturer (ne8nin~the ~eraon, Slrm, ~ssocistl~on, or corporctlon

knich processee the wheat or otherDepartment of Agriculture,Page 2

cereal into flour, or whioh'prooesses the oorn into meal) an8 the name of the place where mllled prlntea or pls.lnly marked on it in letters and figures clearly readable; and that it shall be unlawftil

for wheat flour, other cereal floup or aorn meal, to be packed for sale, offered **for** sale or sold within the State of Texas unleas It shall be so labellea.

‘Sec. 4. That the provisionsof thls Act shall not apply to the retalllng of wheat flour, other oered. flour or corn meal Blreot to the consumerfrom bulk stock, nor to sales of flour to bakeries for use in euch bakeries,nor to the exohange of flour or meal for xheat or corn by grist mills and other mills grlnainq for toll for producers; e.nCi thr.t nothin.?

herein contAined shall be held to ~only to Eny proWet+ such as preQaretl-ozncake flour. czi!<e

flour or other snecialtvo.zc%ed and distribsted ln identiflea orirrlnal

DzckaCe. t!3e

net contents of which ere **five** (5) oounds or less.
'Sea. 5. That any violation of thls Act shall be a mledemeanor, ana upon ccnvlotlon the offender sh&l be fined not lees than twenty-five,

DolJ.ors

($25) nor more than One Hunared Dollars ($100) for each oSfenee.8 (Emphasisours)
Xoa state thst: ' '*This Department,

as well as food ana &ug authorities,

has constrid the unaersooredportions of Seatlon 4 a8 meaning bnreo~rea pancalre flour,prepared cake flour, or other prepared epeclnltles.' In other worde, we have construed It to mean uheat flour or other cereal flour to which has been eddea other lnqredlenta; for lnstance,a leavenlnqagent, salt, sugar, ehortenlng, powaerea mll'd, flavoring, or other ingredients which would ppenzre said flour for cooking after the aadltion of water or milk only by the user. We now are confrontedwith various products which the manufacturersthereof olaim toDepartment of Agriculture,Page 3

fall within this exemption;for instance, 'wholewheat flour',.

packed in tno pound:.oardboardoartdns. general

Said wholewheat Slour being strictlya Duroosewholewheat flour with no other ingredients

udd.ed, the companymanufacturing Jo 8ame, claiming it to be a 'specialty.‘ - "flow, the first question Is, should this two pound packaTe of genr?rxl nurdofie'wholewheat flour' be exempt from the provisionsof the Act because it is packed In a cardboard oarton bearing the trade-markand firm name of a particularmill,~saidmill olalafng the package~to be a 'speoialty?' *We have another package confrontlng.ue that contains 2 3/4 pounds of 'wheat flour'. This flour is reconmenaed for severalpurposes and oan be used for aily purpose for which others high grade wheat flours can be ,uaed. It is paokerl

in a cardboardcarton and labelad 'cake flour' but it Is not a 'pregaredaake flour' having additional ingreaientsadded. The claim of the manufacturerIs that it le exempt from the provisionsof the a& uncler the term of 8eotion 4. 'The eeaond question is, ehould only '~-FLp-4 cake flour' be exempt from the provlalone of the aot or should any 'wheat flour' labeled by the manufactureras 'cake flour' be exempt7 *The third question is, should only Ioreps& spaoialtiee' be,exempt from the provmone of the law or should any 'wheat flour' or 'other cereal flour' pack~ed in containersof 6 pounds or less and cleclared by the manufacturerto be a specialtybe exempt from the sot?" The answer to each of your questionswill depend upon a proper interpretation of the exemptionprovided In Section4 for *any product such as prepared pancake flour, aakc flour or other speoialtypcked and distributed in the identifiedoriginalpa&ace, the netcontents of which are five (5) pounds or less.* The caption OS the Aot provides

### ..._sDepartment

OS Agriculture,Page 4

for thie exoeptlon In the following language, *and such prepared

products of wheat or oorn selling In less than five (5) pounadots.@

The word *preparedwIK defined by Webster as "maderzady, fit, or suitablebeforehand;adopted, ready,

* l . . It has been Judicially defined In oonneotlon ulth goods as UputtIngthem in a state for use," (People v. Woolen,

291 N. Y. Eupp. 665, 666, 161 MEO. 256); or as goods which have been advanced from their raw or natural ‘stetetowards the conditionof their ultimateuse. United State8 v. Conkey and Co., 12 Ct. CUSt. App. 552, 555.
For example."prepared prunes" are prunes that

are first dried then stewed in sugar syrup and finally sealedIn cans. eervingCo. UatIonal Grocery Co. v. ?ratt-Low PreP flour"may ie170 Wash. 575, 17 Tao. (2d) 51, 52. "Prepared aselS-rIsIng

flour", that la, flour (wheat, buckwheat,

corn) with baking powder ana salt In the right proportions(webeter);or, flour with salt, soda, and phosphateadded in proper proportionsand properly mixed, used In making griddle cakes, biscuits,and other hot breadsdr cakes. Royal Salring Co. v. Federal Trade Comm. (C.C.A.)56 Fed. (2d) 581, 562. As stated by the author of Exxperlmental

Cookery flour terminology has become conrusingand, a specially prepared oake flour may be something entirelydifferent.

Plain flour, wheat flour or white flour Is the Sine gralnedproduct obt?lned in the commercialuIlllng OS wheat, and consists essentiallyof the stsroh and gluttenof the endosnerm. Vhole-wheatflour, entlrewheat flour, or graham flour Is the product made by grindIngwheat and conteins in their naturalproportions, 811 of th; constltuents'of the cleaned grain. Definitions from Lone, ExoerImenta.1 Cookery (2nd Ed:, 1937), John Wiley and Sons, 1Gew York. Flour may be made from either hard or soft wheat. 'CakeFlour4 Is milled from eoft wheat. eencr.allr a "short* Patentand the granulationvery fine. '(&erImentnl CookPi %& 1 r'lour emecially orsonred for cskemakirqneed not ascessarily

contain iXc14ed

incredlentfi.

?fiechrrectcristicswhI&merIf Its classlfIcatIon as a specialty,that Is, cake flour, may result entirely from the refiningprocess./--- Departmentof Agriculture,, Page 6.

i--

,-, b'e believe that the phrase 'prepsredpancake .flour, cake flour or other speoIalty*refers to wheat products and blends paoked and distributedin identified originalpackage6 of five pounds or less which are preDared for special or limited uses. In addition, in order to meet the requirementsof a nspeclalty", the manuf'acturer must hold the product out or offer it for such speolal or.limIted

usse. 

### .J

A *speoialtyais defined by Webster as, *an r/ objeat or class of obJeots distinguished by some speoial characteristic,

Individualquality, or the like,; especial- ' ly,~ a product,usunlly

manufactured,of a special kind, made under a specialpatent, servingone specialpurnose, eta: _~

__ -:.~~
The qualitiesof a specialtyae' applied to flour mrry result not only from the process by whioh it is made (differingfrom the usual), and the consumeruse toward which It is directed,but also from limitationsupon consumer u6e.

It is well known that the consumingpublic buys considerably

more *lIght6,

than *whole-wheat" flour. It Is likewisetrue that whole-wheat sgeolaltiea,flour and meal made from the whole grsin, useful, for example, in making whole-wheat

muffins or bread, spollsmore quickly beoa~use of weavll infestationthan refined flour, and purchas@of such flour for modorate consumeruse shouldbe and are In relativelysmall quantities. See Wllmot and Batjer, Food F'or the Fsmllx, J. B. LippincottCo., 1938. Applying these tests, in answer to your first question,If the genrral:purpose*whole-wheat flourY Is otherwiseexempt under Section 4 of Article 1042s Gf'Vernon's Penal Code and Is prepared for and held out to the publio at3 a RspecIaltynIt will be exempt from the size requirements of Section 1. _'

Likewise, in answer to your second question, if the %rhoZe-whes.t

flour” there Bescribed is prepared for and held out to the publio as a "oake flour', It will be exempt.
your third question Is a general one and can only be answeredby applying the tests before given. lfDepartmentof Agriculture,Page 6

a produot Is prepared for a soeclaluse or uses and Is offered or held out to the pub110 as such a *speoialtyn It may be so exempt.

i"LRSTASSISTANT A'XJRNEYGENJD6:Ll-S Very truly your6 ATTORNEYGENERAL OF TEXAS

BY Aesistmt

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