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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% 

butterfat but 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. Subsection A in Section 1 of 

Article 165-3 sets forth the following definition: 

"Milk. Milk is hereby defined to be the 

lacteal secretion, practically free from colostrum, 

obtained by the complete milking of one or more 

healthy cows, which contains not less than 8-l/4 

percent milk solids-not-fat and not less than 

3-l/4 percent milkfat. (Milkfat- is 

the fat of milk.)" (Emphasis added.) 

As the milk 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 "Skim Milk" or "Skimmed Milk", and provides 

in part as follows: 

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Dr. James E. Peavy, page 2 (M-320) 

II 

. . . Skim milk or skimmed milk is milk 

from which sufficient milkfat has been removed 

to reduce its milkfat content to less than 

0.50 percent. . . .' (Emphasis added.) 

Subsection G in Section 1 of Article 165-3 sets forth 

the definition of "Lowfat Milk", and provides in part as follows: 

H . . . Lowfat milk is milk from which a 

sufficient portion of milkfat has been removed 

to reduce its milkfat content to not less than 

0.50 percent and not more than 2.0 percent. 

II . . . (Emphasis added.) 

As the milk product to which you refer in your question 

contains more than 2.0% butterfat, such product exceeds the maximum 

butterfat content of both "Skimmed Milk" and "Lowfat Milk" 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 regulated product within the provisions of Article 165-3, even if such milk 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. Subsection T-l in Section 1 of Article 165-3 

provides in part that: 

"Milk and milk products are misbranded 

. . .; (2) when such milk and milk 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 165-3 be offered for sale as one of the defined milk products, then, in such event, the product would be 

misbranded and the person so violating the statute would be subject 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's Civil Statutes. 

Section 2 of Article 165-3a, the "Texas Equal Health 

Standard Milk Sanitation Act of 1961", provides in part that: 

"The purpose of this Act is to utilize effectively existing agencies and departments in 

regulating, processing, and distributing milk 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.that ali Grade- 'A' pasteugised milkand/or Grade~'A2.raw milk for-pasteurization 

shipped into Texas be produced under rules, 

regulations, and statutes providing standards 

as high or higher than those provided by the 

Texas Milk Grading and Labeling Law . . . 

(codified as Article 165-3, . . .) . . ." 

(Emphasis added.) 

Section 3 of Article 165-3a provides in part that: 

"From and after the effective date 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 fluid milk of whatever quality, shall 

in anywise approve, qrant, or issue a permit, 

certificate, -or othe; authorization fok Grade 'A' 

pasteurized milk and/or Grade 'A' raw milk for 

pasteurization to be shipped into Texas unless the 

same IS produced in accordance with 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' pasteurized milk 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 fluid milk was 

produced under equivalent rules and regulations 

required for the production of milk in the State 

of Texas. . . .'I (Emphasis added.) 

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Dr. James E. Peavy, page 4 (M-320) 

Section 5 of Article 165-3a, which sets forth the 

penalties for violation of the act, refers once again to "Grade 

'A' pasteurized milk,, and "Grade 'A' raw milk for pasteurization." 

Subsection P in Section 1 of Article 165-3 provides 

that: 

,I . . . Grade 'A, raw milk or milk products 

are milk or milk products which have been produced-&id handled in accordance with the specifications and requirements as promulgated by 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.,' 

(Emphasis added.) 

Subsection Q in Section 1 of Article 165-3 provides 

that: 

Grade 'A, pasteurized milk or milk 

produc;s'a;e milk or milk products which have been 

produced and pasteurized in accordance with the 

specifications and requirements as promulgated by 

the Commissioner of Health. . . ." (Emphasis 

added.) 

Subsection 0 in Section 1 of Article 165-3 provides in 

part that: 

"Milk products 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, reconstituted or recombined milk and milk products, concentrated milk, 

concentrated milk products, skim milk, skimmed 

milk, lowfat milk, fortified milk and milk products, vitamin D milk and milk products, homogenized milk, flavored milk or milk products, 

buttermilk, cultured buttermilk, cultured milk, 

cultured whole milk buttermilk, and acidified 

milk and milk products. . . ." 

Since the provisions of Article 165-3a are restricted 

solely to "Grade 'A' pasteurized milk 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 such milk products, we 

are of the opinion that milk 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 products defined 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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