UNITED STATES v. CAROLENE PRODUCTS CO.
304
;
MR. JUSTICE STONE delivered
the opinion of the Court.
The question for decision is
whether the "Filled Milk Act" of Congress of March 4, 1923 (c. 262,
42 Stat. 1486, 21
shipment in [*146]
interstate commerce of skimmed milk compounded with any fat or oil other
than milk fat, so as to resemble milk or cream, transcends the
power of Congress to regulate
interstate commerce or infringes the Fifth Amendment.
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n1 The relevant portions of
the statute are as follows:
"Section 61. . . . (c)
The term 'filled milk' means any milk, cream, or skimmed milk, whether or not
condensed, evaporated, concentrated, powdered, dried, or
desiccated, to which has been
added, or which has been blended or compounded with, any fat or oil other than
milk fat, so that the resulting product is in imitation or
semblance of milk, cream, or
skimmed milk, whether or not condensed, evaporated, concentrated, powdered,
dried, or desiccated. . . .
"Section 62. . . . It is
hereby declared that filled milk, as herein defined, is an adulterated article
of food, injurious to the public health, and its sale constitutes a fraud
upon the public. It shall be
unlawful for any person to . . . ship or deliver for shipment in interstate or
foreign commerce, any filled milk."
Section 63 imposes as
penalties for violations "a fine of not more than $ 1,000 or imprisonment
of not more than one year, or both . . ."
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Appellee was indicted in the district court for southern
compound of condensed skimmed
milk and coconut oil made in imitation or semblance of condensed milk or cream.
The indictment states, in the words of the
statute, that Milnut "is an adulterated article of food, injurious
to the public health," and that it is not a prepared food product of the
type excepted from the
prohibition of the Act. The
trial court sustained a demurrer to the indictment on the authority of an
earlier case in the same court,
Products Co., 7 F.Supp. 500. The case was
brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34
Stat. 1246, 18 U. S. C. § 682. The
Court of Appeals for the
Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as
an appropriate exercise of the commerce power in Carolene
Products Co. v. Evaporated
Milk Assn., 93 F.2d 202.
Appellee assails the statute as beyond the power of Congress
over interstate commerce, and hence an invasion of a field of [***5]
action said to be reserved to the
states by the Tenth
Amendment. Appellee also complains that the [*147]
statute denies to it equal
[**781] protection of the laws and,
in violation of the Fifth
Amendment, deprives it of its
property without due process of law, particularly in that the statute purports
to make binding and conclusive upon appellee the
legislative declaration that appellee's product "is an adulterated article of food
injurious to the public health and its sale constitutes a fraud on the
public."
First. The power to regulate
commerce [***6] is the power "to prescribe the rule by
which commerce is to be governed," Gibbons v.
and extends to the
prohibition of shipments in such commerce. Reid v.
Hudson Co., 213 U.S. 366;
Hope v. United States, 227 U.S. 308; Clark Distilling Co. v. Western Maryland
R. Co., 242 U.S. 311; United States v. Hill, 248
other than are prescribed by
the Constitution." Gibbons v.
the states for which they are
destined it may reasonably conceive to be injurious to the public health,
morals or welfare, Reid v.
supra; Hipolite
Egg Co. v.
Kentucky Whip & Collar
Co. v. Illinois Central R. Co., 299
consequence is to restrict
the use of articles of commerce within the states of destination, and is not
prohibited unless by the due process clause of the Fifth
Amendment. And it is no
objection to the exertion of the power to regulate interstate commerce that its
exercise is attended by the same incidents which attend the
exercise of the police power
of the states. Seven Cases v.
251
the Fifth Amendment.
[8]
Second. The prohibition of
shipment of appellee's product in interstate commerce
does not infringe [***8] the Fifth Amendment. Twenty years ago this
Court, in
Hebe Co. v. Shaw, 248
condensed skimmed milk,
compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The
power of the legislature to secure a minimum of
particular nutritive elements
in a widely used article of food and to protect the public from fraudulent
substitutions, was not doubted; and the Court thought that there
was ample scope for the
legislative judgment that prohibition of the offending article was an
appropriate means of preventing injury to the public.
We see no persuasive reason
for departing from that ruling here, where the Fifth Amendment is concerned;
and since none is suggested, we might rest decision
wholly on the presumption of
constitutionality. But affirmative evidence also sustains the statute. In
twenty years evidence has steadily accumulated of the danger to
the public health from the
general consumption of foods which have been stripped of elements essential to
the maintenance of health. The Filled Milk Act was
adopted by Congress [***9]
after committee hearings, in the course of which eminent scientists and
health experts testified. An extensive investigation was made of
the commerce in milk
compounds in which vegetable oils have been substituted for natural milk fat,
and of the effect upon the public health of the use of such
compounds as a food
substitute for milk. The conclusions drawn from evidence presented at the
hearings were embodied in reports of the
[*149] House
Committee on Agriculture, H.
R. No. 365, 67th Cong., 1st Sess., and the Senate
Committee on Agriculture and Forestry, Sen. Rep. No. 987, 67th Cong., 4th
Sess. Both committees concluded, as the statute itself
declares, that the use of filled milk as a substitute for pure milk is
generally injurious [**782] to health and
facilitates fraud on the
public. n2
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n2 The reports may be
summarized as follows: There is an extensive commerce in milk compounds made of
condensed milk from which the butter fat has been
extracted and an equivalent
amount of vegetable oil, usually coconut oil, substituted. These compounds
resemble milk in taste and appearance and are distributed in
packages resembling those in
which pure condensed milk is distributed. By reason of the extraction of the
natural milk fat the compounded product can be
manufactured and sold at a
lower cost than pure milk. Butter fat, which constitutes an important part of
the food value of pure milk, is rich in vitamins, food elements
which are essential to proper
nutrition and are wanting in vegetable oils. The use
of filled milk as a dietary substitute for pure milk results, especially in the
case of
children, in
undernourishment, and induces diseases which attend malnutrition. Despite
compliance with the branding and labeling requirements of the Pure Food and
Drugs Act, there is
widespread use of filled milk as a food substitute for pure milk. This is aided
by their identical taste and appearance, by the similarity of the
containers in which they are
sold, by the practice of dealers in offering the inferior product to customers
as being as good as or better than pure condensed milk sold
at a higher price, by
customers' ignorance of the respective food values of the two products, and in
many sections of the country by their inability to read the labels
placed on the containers.
Large amounts of filled milk, much of it shipped and sold in bulk, are
purchased by hotels and boarding houses, and by manufacturers of
food products, such as ice
cream, to whose customers labeling restrictions afford no protection.
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There is nothing in the
Constitution which compels a legislature, either national or state, to ignore
such evidence, nor need it disregard the other evidence which amply
supports the conclusions of
the Congressional Committees that the danger is greatly enhanced where an
inferior product, like appellee's, is
indistinguishable from
[*150]
a valuable food of almost universal use, thus making fraudulent
distribution easy and protection of the consumer difficult. n3
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n3 There is now an extensive
literature indicating wide recognition by scientists and dietitians of the
great importance to the public health of butter fat and whole milk
as the prime source of
vitamins, which are essential growth producing and disease preventing elements
in the diet. See Dr. Henry C. Sherman, The Meaning of
Vitamin A, in Science, Dec.
21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition
(1929 ed.), pp. 134, 170, 176, 177; Dr. A. S. Root,
Food Vitamins (N. Car. State
Board of Health, May 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and
Nutrition (1932), p. 367; Dr. Mary S. Rose, The
Foundations of Nutrition
(1933), p. 237.
When the Filled Milk Act was
passed, eleven states had rigidly controlled the exploitation of filled milk,
or forbidden it altogether. H. R. 365, 67th Cong., 1st Sess.
Some thirty-five states have
now adopted laws which in terms, or by their operation, prohibit the sale of
filled milk.
Code, 1936 Supp., § 943y;
Pope's
135; Del. Rev. Code, 1935, §
649; Fla. Comp. Gen. Laws, 1927, §§ 3216, 7676;
Stat. Ann., 1937 Supp., §
53.020 (1), (2), (3); Burns Ind. Stat., 1933, § 35-1203;
Code, Art. 27, § 281;
12408-12413; Mont. Rev. Code,
Anderson and McFarland, 1935, c. 240, § 2620.39;
37, p. 619; N. J. Comp.
Stat., 1911-1924, § 81-8j, p. 1400; Cahill's N. Y. Cons. Laws, 1930, § 60, c.
1; N. D. Comp. Laws, 1913-1925, Pol. Code, c. 38, §
2855 (a) 1; Page's Ohio Gen.
Code, § 12725; Purdon's Penna. Stat., 1936, Tit. 31, §§ 553, 582; S. D. Comp.
Laws, 1929, c. 192, § 7926-0, p. 2493; Williams
34, c. 303, § 7724, p. 1288;
1929, §§ 25-104, 25-108.
Three others have subjected its sale to rigid regulations.
41-1208 to 41-1210;
Remington's Wash. Rev. Stat., v. 7, Tit. 40, c. 13, §§ 6206, 6207, 6713, 6714,
p. 360, et seq.
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[*151]
[**783]
[9]
Here the prohibition of the
statute is inoperative unless the product is "in imitation or semblance of
milk, cream, or skimmed milk, whether or not condensed."
Whether in such circumstances
the public would be adequately protected by the prohibition of false labels and
false branding imposed by the Pure Food and Drugs
Act, or whether it was
necessary to go farther and prohibit a substitute food product thought to be
injurious to health if used as a substitute when the two are not
distinguishable, was a matter
for the legislative judgment and not that of courts. Hebe
Co. v. Shaw, supra;
It was upon this ground that
the prohibition of the sale of oleomargarine made in imitation of butter was
held not to infringe the Fourteenth Amendment in Powell v.
Co. v. Lynch, 226
[10]
Appellee raises no valid objection to the present statute by
arguing that its prohibition has not been extended to oleomargarine or other
butter substitutes in which
vegetable fats or oils are
substituted for butter fat. The Fifth Amendment has no equal protection clause,
and even that of the Fourteenth, applicable only to the
states, does not compel their
legislatures to prohibit all like evils, or none. A legislature may hit at an
abuse which it has found, even though it has failed to strike at
another. Central Lumber Co.
v. South Dakota, 226 U.S. 157, 160; Miller v. Wilson, 236 U.S. 373, 384; Hall
v. Geiger-Jones Co., 242 U.S. 539, 556;
Farmers & Merchants Bank
v. Federal Reserve Bank, 262
[*152]
[11]
Third. We may assume for
present purposes that [***13] no pronouncement of a legislature can
forestall attack upon the constitutionality of the prohibition which
it enacts by applying
opprobrious epithets to the prohibited act, and that a statute would deny due
process which precluded the disproof in judicial proceedings of all
facts which would show or
tend to show that a statute depriving the suitor of life, liberty or property
had a rational basis.
[12]
But such we think is not the
purpose or construction of the statutory characterization of filled milk as
injurious to health and as a fraud upon the public. There is no
need to consider it here as
more than a declaration of the legislative findings deemed to support and
justify the action taken as a constitutional exertion of the
legislative power, aiding
informed judicial review, as do the reports of legislative committees, by
revealing the rationale of the legislation. Even in the absence of such
aids the existence of facts
supporting the legislative judgment is to be presumed, for regulatory
legislation affecting [***14] ordinary commercial transactions is not
to be pronounced
unconstitutional unless in the light of the facts made known or generally
assumed it is of such a character as to preclude the assumption that it rests
upon some rational basis
within the knowledge and experience of the legislators. n4 See Metropolitan
Casualty [**784] Ins. Co. v.
[*153] Brownell, 294
580, 584, and cases cited.
The present statutory findings affect appellee no
more than the reports of the Congressional committees; and since in the absence
of the
statutory findings they would
be presumed, their incorporation in the statute is no more prejudicial than surplusage.
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n4 There may be narrower
scope for operation of the presumption of constitutionality when legislation
appears on its face to be within a specific prohibition of the
Constitution, such as those
of the first ten amendments, which are deemed equally specific when held to be
embraced within the Fourteenth. See Stromberg v.
It is unnecessary to consider
now whether legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable
legislation, is to be
subjected to more exacting judicial scrutiny under the general prohibitions of
the Fourteenth Amendment than are most other types of legislation.
On restrictions upon the
right to vote, see Nixon v. Herndon, 273
see Near v. Minnesota ex rel.
Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean
v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on
interferences with political
organizations, see Stromberg v.
373-378; Herndon v. Lowry,
301
Jonge v.
Nor need we enquire whether
similar considerations enter into the review of statutes directed at particular
religious, Pierce v. Society of Sisters, 268 U.S. 510, or
national, Meyer v.
supra; Nixon v. Condon,
supra: whether prejudice against discrete and insular minorities may be a
special condition, which tends seriously to curtail the operation
of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry. Compare
McCulloch v.
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[13]
[14]
[15]
Where the existence of a
rational basis for legislation whose constitutionality is attacked depends upon
facts beyond the sphere of judicial notice, such facts may
properly be made the subject
of judicial inquiry, Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, and
the constitutionality of a statute predicated upon the
existence of a particular
state of facts may be challenged by showing to the court that those facts have
ceased to exist. Chastleton Corporation v. Sinclair,
264
to a particular [*154]
article is without support in reason
[***16] because the article,
although within the prohibited class, is so different from others of the class
as to be without the reason
for the prohibition, Railroad Retirement Board v.
357, 379; cf. Morf v. Bingaman, 298
administrative difficulty of
excluding the article from the regulated class. Carmichael v. Southern Coal
& Coke Co., 301
Barnwell Bros., 303
whether any state of facts
either known or which could reasonably be assumed affords support for it. Here
the demurrer challenges the validity of the statute on its
face and it is evident from
all the considerations presented to Congress, and those of which we may take
judicial notice, that the question is at least debatable
whether commerce [***17]
in filled milk should be left unregulated, or in some measure
restricted, or wholly prohibited. As that decision was for Congress, neither
the finding of a court arrived at by weighing the evidence, nor the verdict of a
jury can be [**785] substituted for it. Price v.
Co. v. Shaw, supra, 303;
Standard Oil Co. v. Marysville, 279 U.S. 582, 584; South Carolina v. Barnwell
Bros., Inc., supra, 191, citing Worcester County
Trust Co. v. Riley, 302
The prohibition of shipment
in interstate commerce of appellee's product, as
described in the indictment, is a constitutional exercise of the power to
regulate interstate
commerce. As the statute is
not unconstitutional on its face the demurrer should have been overruled and
the judgment will be
Reversed.
[*155]
MR. JUSTICE BLACK concurs in the result and in all of the opinion except
the part marked "Third."
MR. JUSTICE McREYNOLDS thinks that the judgment should be affirmed.
MR. JUSTICE CARDOZO and MR.
JUSTICE REED took no part in the consideration or decision of this [***18]
case.
CONCURBY:
CONCUR: MR. JUSTICE BUTLER.
I concur in the result. Prima
facie the facts alleged in the indictment are sufficient to constitute a
violation of the statute. But they are not sufficient conclusively to
establish guilt of the
accused. At the trial it may introduce evidence to show that the declaration of
the Act that the described product is injurious to public health and
that the sale of it is a
fraud upon the public are without any substantial foundation. Mobile, J. &
K. C. R. Co. v. Turnipseed, 219
279
Comm'n v. American Tobacco Co., 264
472. Richmond Co. v.
neither injurious to health
nor calculated to deceive, [***19] they are repugnant to the Fifth Amendment.
Weaver v. Palmer Bros. Co., 270
See People v. Carolene Products Co., 345
276
adulterated article of food,
injurious to the public health," tenders an issue of fact to be determined
upon evidence.