August 3, 1948

Hon. Howard Granberry,M.D. Chairman State Board of Health Austin, !exas Opinisn No. V-646 Re: Authorit of State Board of Healt

iito rescind a regulation of State Health Officer. Dear Dr. Cranberry:

Your opinion request states that in September, 1939, pursuant to Articles l+l+65A and 4466, the State Health Officer promulgatedrules regulating the manufacture of ice cream. On June 1, 1948,he issued revised regulationswhich provide that:

"Ice cream is a clean frozen,dairy productmade fromcream ,milk'ormilk products, and sugar,with.or without a harmless flavoring and with or without eggs or egg products,and containsnot less than 8 percent of~milk fat andmay contain one-half of one percent of harmless.stabilizerand shall not contain any fats or oils other than milk'fat, and shallweigh not less than 4.5 poundsper gallon." There~ are variations for "fruit ice cream" and "nut ice cream"which are not relevant here.

On June 14,'1948 the'state Board of Health repealed the State Healthbfficer(s regulation of June 1, 1948, and issued the following~inits place:

"All ice cream shall containnot less than 8 percentbutter fat and not less than 4 percentvegetable fat if vegetable fat is added, and that all ice creammanufactured, whether under the new process or the old process, shall state on thenlabel just what it containsand the percentage of each."Hon. Howard Granberry,N.D., Page 2 (V-646 )

Your question is:
"Was the action of the~State Boardof Health a valid procedure, and if not, are the regulations issuedby the State Health Officer as of June 1st 1948 the present official regulations?" The respectiveduties of the State Board of Health (calledthe Board) and the State Health Officer are createdand defined by Acts of the Legislature. By Article 4414a, the State Department of Health consists of the State Board of Healthand the State Health Officer. The Health Officer is employedby the Board. It has the power to remove him for cause after notice and hearing. The Board is authorized to investigate the work of the State Department of Health, and is empowered to adopt rules for its own procedure. Art. 4418a. The Board is given general supervisionand control "of all matters pertainingto the health of the citizens of this State." It is empowered to make studies, inspections,and investigations. It is given control over sanitaryand quarantinemeasures, and hasmany similar powers. Arts. 4419-4421. But it is nowhere authorized to promulgaterules such as are here involved, nor to repeal any regulation duly issuedby the Health Officer. The Health Officer, on the other hand, is expressly empowered by the Legislaturewith rule making power. Thus Article 4466 provides that he shall:

Vmke ,publish and enforce rules consistentwith this law, and adopt standards for foods, food products,beverages, drugs, etc.
. . ." By way of contrast,with reference to the internalmanagement of the Department,Article 4418d provides that:

"He (theHealth Officer) shall have the power,'with.theaccroval of the State Board of Health? to prescribeand promulsate such administrativerules and regurations

. . .asmay be deemed necessary for the effectiveperformanceof the duties.
Hon. Howard Granberry,M.D., Page 3 (v-646)

imposedby this or any other law upon the State Department of Health and its several.officers and divisions."
You are therefore respectfullyadvised that under the respective powers given by the Legislature, the Health Officer is authorized to promulgaterulEi and adopt standards for food and food products. State Board is not authorized to repeal such regulations or to promulgate it& erder of June 14, 1948. Assuming-that the regulations of the Health,Officer l f June 1, 1948, are in other respects valid, they constitute the present official regulations on the subject.

The State Board of Health is not empowered to repeal a health regulation of the State Health Officer duly issuedunder Article L&66. Yours very truly, ATTORNEY GENERAL OF TEXAS

5?JLdu
Joe R. Greenhill ExecutiveAssistant JRG:erc

ATTORNEY GENERAL