### THE A~~OORNE;Y GENERAL OF TEXAS 

### 665

August 22, 1950

Hon. Oeo. W, Cox, l&D. State Health Officer Departmentof Health Austin, Texas opinion 150. v-1095. Rep The legalityof marketlngmilk inTexas under
Dear Sir: a label bearing the word "fresh.' Reference is made to your recent requestwhich reaUs in part as follows:

"DoesArticle 165-3, Section 4, Bevised Civil Statutes,Texas 1937 Supplement prohibit the use of the word @freshs so placed on a label for graUe A pasteurized homogenizedvitamin D milk that lt~ would likely be interpretedas ref+rdng to the safety, sanitaryquality or food value of the contents of a containerso labelea?"

part: Section 4 of Article 165-3,VXS,, provides in

'No milk or milk products sold, produced or offered for sale within this State by any person, firm, assoctitionor corporation shall carry a label, device or design marked 'graUeA' or OgradeB' or any other grade, statement,design or device, regard: Ing the safety, sanitaryquall'ty or food value of the contents of the container a is misleading or which does not conform to the definitionsand re uirementsof this Act.' (Underscoring ours. s Black's Law mctionarg (3rdEd. 1933) defines the word "fresh"as 'immediate, recent, followingwithout any material interval."i Webster's International mctionary (2nd Ed. 1938) defines "freshaas "having its originalqualitiesunlmpairti."

In City of Iiousvllle v. Rwlng Vol-AllmenDairy co., 105 S.W.2d 801,.802 (KyO Ct. of App. 1937), the

### 666 - . .

Hon. Geo. W. Cox, Mil. D., page 2 (V-1095)

court stated:

*However,

when the process (pasteurization)Is complete, we have nothing left but milk, the same article an~¶ raw material that comes fresh from a healthy cow by the hanas of a carefuland clean milker, after it had been properly straln0% and preparedfor use by a first-class, clean and tlUy housewife. The milk, after the pasteurization is complete,contains the same ingre&lents as It had In it when it came from the cow. It is only ma&e clean food to be used. It has lost none of Its palatabletaste as when it came from a healthy cow. Still, it containsall of the ingredientsthat it formerlyhacl." The above case was cited in Rieck-XcJunkin Dairy Co. v. SchoolDist, of Pittsburgh*66 A,2d 295, 299 (Pa0 Sup. 1949), and there the court statedn j

"Homogenization

breaks .up

globules of fat to prevent separationof cream from milk and results in untform Distribution of the fat content of the milk. o o 0 While some of the attributesof milk are changed by the process it Is not manufacturinginto a new and differentarticle. It also continues to be ,sold

as milk, Pasteurized anU' homogenizedv&tan&n D milk s.nU pasteurized chocolatemilk is milk with the addition,in one instance,of vitaminD concentrate an& in the other, of chocolateand Sugar.
. o . These productsare sold as milk; the changes are essentiallyin the milk flavor, they are still use% as beveragesand are not new an8 differentproductsin the sense of the definition of manufacture."
In view of the above definitionsar&interpretations, it Is the opinion of this office that the use of the word "fresh,'under the circumstances, is not mlsleacling within the meaning of the statute, since it does not apply to and is not descriptiveof either the safet Ftary quality or food value of the contents -r--== of he container.Hon. Qeo. W. Cox, M.D., page 3 (v-1095) 

### 667

Section 4 of Article 165-3 of Vernon's Civil Statutesdoes not prohibit the use of the word "fresh'on labels of Wade A pasteurizedhomogenized vitamin D milk; since this term does not refer to either the safety, sanitaryquality, or food value of the contentsof the containers so labeled.
APPROVEDI 3. C. Davis, Jr. CountyAffairs Division
Everett Hutchinson ExecutiveAssistant

. Charles D. Mathews First Assistant LT:llmmw Yours very truly,
~. ,. PRICE DANIEL Attorney. penera

a-/ Assistant