THE A~~OORNE;Y GENERAL 

OF TEXAS 

665 

August 22, 1950 

Hon. Oeo. W, Cox, l&D. 

State Health Officer 

Department of Health 

Austin, Texas 

opinion 150. v-1095. 

Rep The legality of marketlngmilk inTexas under 

Dear Sir: 

a label bearing the word 

"fresh.' 

Reference is made to your recent request which 

reaUs in part as follows: 

"Does Article 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 homogenized vitamin D milk that lt~ 

would likely be interpreted as ref+rdng 

to the safety, sanitary quality or food 

value of the contents of a container so 

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, assoctition or corporation shall carry a label, device or design 

marked 'graUe A' or Ograde B' or any other 

grade, statement, design or device, regard: 

Ing the safety, sanitary quall'ty or food 

value of the contents of the container 

a is misleading or which does not conform to the definitions and re uirements of 

this Act.' (Underscoring ours. s 

Black's Law mctionarg (3rd Ed. 1933) defines 

the word "fresh" as 'immediate, recent, following without any material interval."i Webster's International 

mctionary (2nd Ed. 1938) defines "fresha as "having 

its original qualities unlmpairti." 

In City of Iiousvllle v. Rwlng Vol-Allmen Dairy 

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 careful and clean 

milker, after it had been properly straln0% and prepared for 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 palatable taste as when it came from a 

healthy cow. Still, it contains all of the 

ingredients that it formerly hacl." 

The above case was cited in Rieck-XcJunkin 

Dairy Co. v. School Dist, of Pittsburgh* 66 A,2d 295, 

299 (Pa0 Sup. 1949), and there the court statedn j 

"Homogenization breaks .up globules of 

fat to prevent separation of cream from 

milk and results in untform Distribution 

of the fat content of the milk. o o 0 While 

some of the attributes of milk are changed 

by the process it Is not manufacturing into a new and different article. It also continues to be ,sold as milk, Pasteurized anU' 

homogenized v&tan&n D milk s.nU pasteurized 

chocolate milk is milk with the addition, in 

one instance, of vitamin D concentrate an& 

in the other, of chocolate and Sugar. . o . 

These products are sold as milk; the changes 

are essentially in the milk flavor, they are 

still use% as beverages and are not new an8 

different products in the sense of the definition of manufacture." 

In view of the above definitions ar&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 descriptive of either the safet 

Ftary quality or food value of the contents of -r--== he container. 
Hon. Qeo. W. Cox, M.D., page 3 (v-1095) 667 

Section 4 of Article 165-3 of Vernon's Civil Statutes does not prohibit 

the use of the word "fresh' on labels of 

Wade A pasteurized homogenized vitamin 

D milk; since this term does not refer to 

either the safety, sanitary quality, or 

food value of the contents of the containers so labeled. 

APPROVEDI 

3. C. Davis, Jr. 

County Affairs Division 

Everett Hutchinson 

Executive Assistant . 

Charles D. Mathews 

First Assistant 

LT:llmmw 

Yours very truly, 

~. ,. 

PRICE DANIEL 

Attorney. penera 

a-/ 

Assistant