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### THE ATFORNEY GENERAL O)F%-EXAS AITBTIN,'l%xaw 78711 December 17, 1968

James E. Peavy, M.D. Opinion No. M-320 Commissioner of Health Texas State Department of Health Re: Whether a milk product Austin, Texas containing over 2.0% butterfatbut less than 3.25%butterfat is "milk" within the meaning of Article 165-3,Vernon's Civil Statutes, and reDear Dr. Peavy: lated questions.

You have reauested the ooinion of this office concerning the question of: -

II taining &r whether or not a milk product con2.0% bu'tterfat

but less than 3.25% butterfat is in fact 'milk'within the meaning of Senate Bill 437 as passed by the 60th Legislature at its Regular Session." Senate Bill.437,Acts of 60th Leg., Regular Session, 1967, Chapter 734, page 1974,made certain amendments to Article 165-3,Vernon's Civil Statutes. SubsectionA in Section 1 of Article 165-3 sets forth the followingdefinition:

"Milk. Milk is hereby defined to be the lacteal secretion,practically free from colostrum, obtained by the completemilking of one or more healthy cows, which contains not less than 8-l/4 percentmilk solids-not-fatand not less than 3-l/4percentmilkfat. (Milkfat- is the fat of milk.)" (Emphasisadded.) As themilk product to which you refer in your question contains less than 3.25%butterfat, such product does not meet the standards or recuirements set forth for "milk"as defined by Section 1 of Article 165-3.

Subsection F in Section 1 of Article 165-3 sets forth the definition of "SkimMilk" or "SkimmedMilk", and provides in part as follows:

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II

. . . Skimmilk or skimmedmilk ismilk from which sufficientmilkfat has been removed to reduce its milkfat content to less than 0.50 percent. . . .' (Emphasisadded.)
SubsectionG in Section 1 of Article 165-3 sets forth the definition of "LowfatMilk", and provides in part as follows:

H

. . . Lowfatmilk is milk fromwhich a sufficientportion of milkfat has been removed to reduce itsmilkfat content to not less than 0.50 percent and not more than 2.0 percent. II

. . . (Emphasisadded.) As the milk product to which you refer in your question containsmore than 2.0% butterfat, such product exceeds the maximum butterfat content of both "SkimmedMilk" and "LowfatMilk" as defined by Section 1 of Article 165-3.

In view of the foregoing, and by virtue of the definitions set forth in Section 1 of Article 165-3,we are of the opinion that a milk product containing over 2.0% butterfat but less than 3.25% butterfat is not "milk"within the meaning of the provisions of Article 165-3.

you have raised the further question of whether the milk product to which you refer is a regulatedproduct within the provisions of Article 165-3, even if suchmilk product is not "milk" within the meaning of Article 165-3.

While the provisions of Article 165-3 apply to those milk products defined therein, a milk product not within such definitions is nevertheless regulated to a certain extent by such provisions. SubsectionT-l in Section 1 of Article 165-3 provides in part that:

"Milkand milk products are misbranded

. . .; (2)when suchmilk andmilk products do not conform to their definitions as contained in this Act; . . ." Should a milk product not within the definitions set forth in Section 1 of Article 165-3be offered for sale as one of the definedmilk products, then, in such event, the product would be misbranded and the person so violating the statutewould be **sub** ject to the pena&ties of Article 165-3. To this extent, the

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-Dr. James E. Peavy, page 3 (M-320)

milk product to which you have referred is regulated by the provisions of Article 165-3.

you have further raised the question of whether the milk product to which you referred is subjec~t to the provisions of Article 165-3a,Vernon'sCivil Statutes.

Section 2 of Article 165-3a, the "Texas Equal Health StandardMilk SanitationAct of 1961",provides in part that:

"Thepurpose of this Act is to utilize effectively existing agencies and departments in regulating,processing, and distributingmilk and milk products to the end that Texas consumers will be assured of a full supply of wholesome, high quality milk, cream, and milk DrOdUctS bv requi&.ng.thatali Grade-'A'pasteugisedmilkand/or Grade~'A2.rawmilk for-pasteurization shipped into Texas be produced under rules, regulations, and statutesproviding standards as high or higher than those provided by the Texas Milk Grading and Labeling Law . . . (codifiedas Article 165-3,
. . .)
. . ." (Emphasisadded.) Section 3 of Article 165-3aprovides in part that: "Fromand after the effectivedate of this Act, no person, officer, or inspector authorized under the laws of this State or any municipality within the State to inspect or regulate the production of fluidmilk of whatever quality, shall in anywise approve, qrant, or issue a permit, certificate,

-or othe; authorization fok Grade 'A' pasteurizedmilk and/or Grade 'A'raw milk for pasteurization to be shipped into Texas unless the same IS produced in accordancewith standards, rules, regulations, and statutes governing the production of milk in the State of Texas; and no such person, officer, or inswctor shall in anvwise permit. certify; or authorize the shipping of shy Grade 'A'pasteurizedmilk and/or Grade 'A'raw milk for pasteurization into this State regardless of the grade, unless such person, officer, or inspector shall certify that such fluidmilk was produced under equivalent rules and regulations required for the production of milk in the State of Texas. . . .'I (Emphasisadded.)
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Section 5 of Article 165-3a,which sets forth the penalties for violation of the act, refers once again to "Grade 'A'pasteurizedmilk,,and "Grade 'A'raw milk for pasteurization."

Subsection P in Section 1 of Article 165-3 provides that:

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. . . Grade 'A,raw milk or milk products are milk or milk productswhich have been produced-&id handled in accordancewith the specifications and requirementsas promulgatedby the Commissioner of Health and which grade and grade label has been determined and awarded by a City or County Health Officer or by his representative.,' (Emphasisadded.) SubsectionQ in Section 1 of Article 165-3provides that: Grade 'A,pasteurizedmilk or milk produc;s'a;emilk or milk productswhich have been produced and pasteurized in accordancewith the specificationsand requirementsas promulgated by the Commissioner of Health.
. . ." (Emphasis added.) Subsection 0 in Section 1 of Article 165-3 provides in part that:

"Milkproducts include cream, light cream, coffee cream, table cream,whipping cream, light whipping cream, heavy cream, heavy whipping cream, whipped cream, whipped light cream,whipped coffee cream, whipped table cream, sour cream, cultured sour cream, half-and-half, sour half-and-half, cultured half-and-half,reconstitutedor recombined milk and milk products, concentrated milk, concentratedmilk products, skim milk, skimmed milk, lowfatmilk, fortifiedmilk and milk products, vitamin D milk and milk products,homogenized milk, flavoredmilk or milk products, buttermilk, cultured buttermilk, culturedmilk, culturedwhole milk buttermilk, and acidified milk and milk products.
. . ." Since the provisions of Article 165-3a are restricted solely to "Grade 'A'pasteurizedmilk and/or Grade ,A'raw milk

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Dr. James E. Peavy, page 5 (M-320)

for pasteurization",and because the product to which you refer does not fall within the definition of suchmilk products,we are of the opinion thatmilk products containing over 2.0% butterfat but less than 3.25%butterfat are not subject to the provisions of Article 165-3a. SUMMARY A milk product containing over 2.0% butterfat but less than 3.25%butterfat is not "milk" within the meaning of Article 165-3,Vernon's Civil Statutes. A milk product containing over 2.0% butterfat but less than 3.25%butterfat is not subject to regulation pursuant to the provisions of Article 165-3, except where such product is offered for sale as one of the milk productsdefined by Article 165-3. A milk product containing over 2.0% butterfat but less than 3.25% butterfat is not subject to the provisions of Article 165-3a;Vernon's Civil Statutes. truly yours,

rney General of Texas Prepared by Pat Bailey Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman David Longoria Douglas Chilton W. 0. Shultx Dyer Moore, Jr. A. J. CARUBBI, JR. Executive Assistant

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