OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

Gentlemen: Attention: Vs. W. 

of Jenuary 11, 1941, requ 

partment ae to the type o 

from the requirements OZ 

whioh reads as fol.lows: 

mea6ur0 ol 

ihe stnnaard measeolcagsa 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 other 
Department 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 provisions of thls Act 

shall not apply to the retalllng of wheat flour, 

other oered. flour or corn meal Blreot to the 

consumer from 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 snecialtv o.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 

(Emphasis ours) 

Xoa state thst: ' 

'*This Department, as well as food ana &ug 

authorities, has constrid the unaersoored portions 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 leavenlnq agent, 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 confronted with various products which the manufacturers thereof olaim to 
Department of Agriculture, Page 3 

fall within this exemption; for instance, 'wholewheat flour',. packed in tno pound:.oardboard oartdns. 

general 

Said wholewheat Slour being strictly a 

Duroose wholewheat flour with no other 

ingredients udd.ed, the company manufacturing 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 provisions of 

the Act because it is packed In a cardboard 

oarton bearing the trade-mark and firm name of 

a particular mill,~said mill 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 several purposes 

and oan be used for aily purpose for which others 

high grade wheat flours can be ,uaed. It is 

paokerl in a cardboard carton and labelad 'cake 

flour' but it Is not a 'pregared aake flour' 

having additional ingreaients added. The claim 

of the manufacturer Is that it le exempt from 

the provisions of 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 manufacturer as '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 containers of 6 pounds 

or less and cleclared by the manufacturer to be 

a specialty be exempt from the sot?" 

The answer to each of your questions will depend 

upon a proper interpretation of the exemption provided In 

Section 4 for *any product such as prepared pancake flour, 

aakc flour or other speoialty pcked and distributed in 

the identified original pa&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 *preparedw IK defined by Webster as 

"made rzady, fit, or suitable beforehand; adopted, ready, 

* l . . It has been Judicially defined In oonneotlon 

ulth goods as UputtIng them 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 

‘stete towards the condition of their ultimate use. 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 

sealed In cans. 

eerving Co. 

UatIonal Grocery Co. v. ?ratt-Low PreP flour" may ie 

170 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 

phosphate added in proper proportions and properly mixed, 

used In making griddle cakes, biscuits, and other hot 

breads dr 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 conrusing and, a specially prepared oake flour may be something entirely different. 

Plain flour, wheat flour or white flour Is the 

Sine gralned product obt?lned in the commercial uIlllng 

OS wheat, and consists essentially of the stsroh and 

glutten of the endosnerm. Vhole-wheat flour, entlrewheat flour, or graham flour Is the product made by grindIng wheat and conteins in their natural proportions, 

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. 

'Cake Flour4 Is milled from eoft wheat. eencr.allr a "short* 

Patent and the granulation very fine. '(&erImentnl CookPi %& 1 r'lour emecially orsonred for cskemakirq need not 

ascessarily contain iXc14ed incredlentfi. ?fie chrrectcristics whI&merIf Its classlfIcatIon as a specialty, that Is, 

cake flour, may result entirely from the refining process. 
/--- 

Department of Agriculture,, Page 6. 

i-- 

,-, 

b'e believe that the phrase 'prepsred pancake 

.flour, cake flour or other speoIalty* refers to wheat 

products and blends paoked and distributed in identified 

original package6 of five pounds or less which are preDared for special or limited uses. In addition, in order 

to meet the requirements of a nspeclalty", the manuf'acturer must hold the product out or offer it for such speolal 

or.limIted usse. 

.J 

A *speoialtya is defined by Webster as, *an r/ 

objeat or class of obJeots distinguished by some speoial 

characteristic, Individual quality, or the like,; especial- ' 

ly,~ a product,usunlly manufactured, of a special kind, 

made under a special patent, serving one special purnose, 

eta: __ _~ -:.~~ 

The qualities of a specialty ae' applied to flour 

mrry result not only from the process by whioh it is made 

(differing from the usual), and the consumer use toward 

which It is directed, but also from limitations upon consumer u6e. 

It is well known that the consuming public buys 

considerably more *lIght6, than *whole-wheat" flour. It Is 

likewise true that whole-wheat sgeolaltiea, flour and meal 

made from the whole grsin, useful, for example, in making 

whole-wheat muffins or bread, spolls more quickly beoa~use 

of weavll infestation than refined flour, and purchas@of 

such flour for modorate consumer use should be and are In 

relatively small quantities. See Wllmot and Batjer, Food 

F'or the Fsmllx, J. B. Lippincott Co., 1938. 

Applying these tests, in answer to your first 

question, If the genrral:purpose *whole-wheat flourY Is 

otherwise exempt under Section 4 of Article 1042s Gf'Vernon's 

Penal Code and Is prepared for and held out to the publio 

at3 a RspecIaltyn It 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 answered by applying the tests before given. lf 
Department of Agriculture, Page 6 

a produot Is prepared for a soeclal use or uses and Is 

offered or held out to the pub110 as such a *speoialtyn 

It may be so exempt. 

i"LRST ASSISTANT 

A'XJRNEY GENJD6:Ll-S 

Very truly your6 

ATTORNEY GENERAL OF TEXAS 

BY 

Aesistmt 

P