(6) Hood & Sons, Inc. v. Boucher et al., 101 Atl. (2) 466 (1953). (8) Dairy Products Co. of Uniontown v. Kennedy, U. S. District Court (N. Dist. of W. Va.), Civil Action No. 555-W (1954); see note below. (9) Sleeth (successor to Kennedy) v. Dairy Products Co. of Uniontown, 228 Fed. (2) 165 (1955); review denied by U. S. Supreme Court, 351 U. S. 966 (1956). (10) Chapman Dairy v. City of Lawton, Okla., U. S. District Court (W. Dist. of Okla.), Civil Action No. 7177 (1957). (11) This case (see above note) is now on appeal. (12) James et al. v. A. W. Todd, Commissioner, decided by the Supreme Court of Alabama (3 Div. 769), Aug. 22, 1957. (13) Dairy Record, June 27, 1956; January 30, 1957, etc. (14) Welsh Farms, Inc., et al. v. Bergsma, 16 N. J. Super. 295, 84 Atl. (2) 631 (1951); Borden Farms Products v. Borough of Somerville, N. J., 36 N. J. Super. 104 (1955). (15) Supplee-Wills-Jones Milk Company v. Williams et al., Circuit Court of Baltimore City, Docket A-55, Case No. 35523 (1956). (16) In a recent Pennsylvania case, an Ohio manufacturer selling ice cream in Pennsylvania was required to obtain a permit under the Pennsylvania Milk Sanitation Act of 1935. This act defines ice cream as a "milk product," thereby requiring State approval of both plant and milk supplies. However, the case involved no attack on the requirement and no question of reciprocity was raised. McAllister's Dairy Farms, Inc. v. Henning, Court of Common Pleas (Dauphin County, Pa.), Equity Docket No. 2254 (1957). Also in the field of manufactured dairy products, a case is pending in Louisiana, attacking its 1956 statute and regulations imposing fluid milk grading on powdered milk in packages for human consumption. Land O' Lakes Creameries, Inc. v. Louisiana State Board of Health, U. S. District Court (E. Dist. of La.), Civil Action No. 7229. Here we are reminded of the talk given by E. J. Roberts, of Crowley's Milk Co., before this institute a year or so ago, when he pointed out that there is no sound public health or quality justification for a measure of this kind. (17) See cases cited in notes 6, 7, 15. (18) See note 6. (19) See the Welsh case, note 14. (20) See note 8, 9. (21) See note 15. (22) Welsh Farms, Inc., et al. v. Bergsma, note 14. General Ice Cream Corp. v. Powers, Albany County, N. Y. Supreme Ct. (1955); Otto Milk Co. v. Rose, note 7. (23) Safeway Stores v. City of Oakland, Alameda, Super. Ct. (1955) (2 miles); Foremost-International Dairies, Inc. v. City of Greenville, S. C., Greenville County, Ct. of Common Pleas (1956) (within city); City of Grand Haven v. Grocers Coop. Dairy Co., 330 Mich. 694, 48 N. W. (2) 362 (1951) (5 miles); etc. In Fulton, N. Y., the city invoked an old resolution of its board of health imposing a 5-mile limit on pasteurizing plants; the case was settled in the supreme court of the county by an order (Dairy Record, Sept. 19, 1956) which leaves the resolution a dead letter: compare the 1928 case of Lang's Creamery, Inc. v. Niagara Falls, 224 App. Div. 483, 231 N. Y. S. 368, reversed on other grounds, 251 N. Y. 343, 167 N. E. 464, leaving the question an "open one" at that time. (24) Unnecessary imposition of local requirements more stringent than the State was recently set aside in Cabell's, Inc. v. City of Nacogdoches, 288 S. W. (2) 154 (Texas, 1956); Borden Farm Products v. Borough of Somerville, N. J., supra, note 14; etc. But compare City of Weslaco, Tex. v. Melton, 301 S. W. (2) 470 (1957), upholding a pasteurization ordinance in a State permitting raw milk. (25) See proposed National Milk Sanitation Act of 1957, H. R. 7794, 85th Cong., 1st sess. (26) Peoples Dairy v. City of Lackawanna, 149 N. Y. Supp. (2) (392) (1956). (27) Gilbert v. Town of Irvington, 20 N. J. 432, 120 Atl. (2) 114 (1956). (28) Efforts such as those of the National Automatic Merchandising Association and various public officials culminated in adoption of a recommended sanitation ordinance and code for vending machines; USPHS Publication No. 546 (July 1957). (29) Defiance Milk Products Co. v. Dumond, 309 N. Y. 537, 132 N. E. (2) 829 (1956). (30) Independent Dairymen's Assn. v. Denver, 142 F. (2) 940 (1944). (32) 1952 Convention, Central Atlantic States Assn. of Food and Drug Of- Mr. OTIE M. REED, MCCONNELL, BRANDT, VAN HOOK & PASCHEN, National Creameries Association, Washington, D. C. DEAR MR. REED: Mr. Howard Dean, of Dean Milk Co., has asked me to for- The following are lawsuits in which Dean Milk Co. has been involved, wherein 1. Dean Milk Company v. Dr. S. J. Phillips, Civil Action No. 5960, United States In this case the State board of health interferred with the shipment of milk 2. Dean Milk Company v. City of Madison, 340 U. S. 349 (1951) In this case there was a city ordinance requiring that all milk sold in the 3. Dean Milk Co. v. City of Aurora, 404 IN. 331 (1949), 88 N. E. 2d 827 4. Dean Milk Co. v. The City of Elgin, 405 IN. 204 (1950), 90 N. E. 2d 112 This ordinance requiring dairies, whether located within or without the city, 5. Dean Milk Co. v. The City of Waukegan, 403 Ill. 597 (1949), 87 N. E. 2d 751 6. Dean Milk Co. v. The City of Chicago, 385 IN. 565 (1944), 53 N. E. 2d 612 I notice that section 13 of H. R. 7794 provides for exclusive enforcement may have to act fast to protect its property, as in the case of the matter of Dean Milk v. Phillips, above, where the State board of health had actually confiscated the milk trucks delivering the milk to the Army post and the Dean Milk Co. had to obtain a temporary restraining order on its own motion so as to save its property. As you can appreciate, in some instances the United States Government may not be able to act quite that speedily to protect a dairy. I should think that a private person injured by a violation of the proposed act should be able to sue for an injunction. Very truly yours, Mr. BUSH. You may proceed. W. DONALD MCSWEENEY. Mr. REED. I want to say at the outset, Mr. Chairman and members of the committee, that I am a professional economist. I am not a milk sanitarian. I have worked in bacteriological laboratories in my younger days, but I would be the last to claim that I know very much about milk sanitation. I have, however, had very considerable experience in the marketing of milk and in the regulation of the marketing of milk. I worked for 12 years in the United States Department of Agriculture and at one time I was chief of what is now called the Dairy Division of the Agricultural Marketing Service, and during the war I was Deputy Director of the Office of Supply, War Food Administration. I have had some experience and I hope some of the information I have had brought before me during these years has sort of worn off on me. I would like to go through, first, a rather brief and general statement with respect to the provisions of this bill. This bill is a bill to protect the public health and promote the public interest and to establish standards of identity and the like as set forth in its first paragraph. This bill is not aimed at anything such as the marketing agreements and orders written under the Agricultural Marketing Agreement Act of 1937, and in that respect I wish to point out to the committee that there are bills now before the Committee on Agriculture of the House of Representatives which would amend the Agricultural Marketing Agreement Act in such fashion that no agreement or order could be made effective or could continue in effect any market which did not accept the United States Public Health Service Milk Ordinance and Code. I think that bill was mentioned this morning by Congressman Laird of Wisconsin. It was originally introduced several years ago and referred to the Committee on Agriculture by the late Honorable Andresen of Minnesota. We did not support that bill because it was an amendment to the Agricultural Marketing Agreement Act, and we thought would be using the United States Public Health Service Code and Ordinance in a punitive in manner. We do, however, strongly endorse and support this bill. In section 2 of the bill are findings. Those findings are rather complete, and I think they are wholly accurate. In section 3 of the bill, we define interstate commerce, and it is indeed interesting to me today to have heard so much discussion of what constitutes interstate commerce or what affects interstate commerce. Gentlemen, I for one am not going to set myself up as an authority on what constitutes interstate commerce or what affects interstate commerce. I am quite sure that the gentlemen on this committee whose position has to do with the regulation of interstate commerce have far better opinions than I as to w that includes. I will say this. I am rather confused as to the allegation which we have heard in the testimony preceding that our definition of interstate commerce and the manner of application of the regulation of interstate commerce therein, and the use of the term "affect interstate commerce" would be, or at least so I inferred from the statements, a rather radical departure in the regulation of interstate commerce, and the authorization of the regulation of interstate commerce by the Congress of the United States. Naturally, in helping organize and draft legislation of this character, we had to come to some conclusion as to what constituted interstate commerce and what the Congress had accepted as a definition of interstate commerce in its legislation in years past. I think you will find that the definition in section 3 is rather the standard defiinition as set forth in the laws of the United States. As to the phrase commerce which affects such commerce or such interstate commerce, that indeed is a troublesome problem, but I don't see anything for us to be so particularly concerned about in respect to the matter. That language is used in many other laws of the Congress, and to my knowledge the degree to which intrastate commerce must affect interstate commerce has not been, so far as I know, subject to final adjudication. Be that as it may, and even if I am in error in that connection. I can say this. In the regulation of milk marketing under the Agricultural Marketing Agreement Act of 1937, the Secretary of Agriculture is authorized to regulate the prices which milk handlers must pay milk producers with respect to milk entering into interstate commerce or which affects such interstate commerce. He is authorized to establish a device for pooling those values. He is authorized to establish a scheme of classification in which milk that goes into the bottle has one use, one that goes into manufactured dairy products has another price attached to it, another class and the like. It also carries the authority to conduct extensive and detailed audits as to whether or not milk handlers are abiding by the regulations issued under that act. As I stated, or I believe I stated, that act has been approved as to its constitutional provisions by the United States Supreme Court, although I do not believe that the question as to just how much milk a market has to receive from out-of-State sources in order to be an appropriate subject of regulation has ever been settled or adjudicated by the Supreme Court of the United States, so we don't know. In administrative practice, however, I think you will find that orders issued under the Agricultural Marketing Agreement Act of 1937 are applied to milk markets in which very little, and I might even go so far as to say practically no milk, moves from the farm to the city distributors across State lines. Yet under the administration of the Agricultural Marketing Agreement Act of 1937 orders have been issued under the commerce power, or rather under an act which is enacted under the commerce power, regulating very intimate details of the economic features of milk marketing. I submit that this definition of interstate commerce therefore is not at all radical or what we seek to apply is not at all radical or outside the realm of experience of the milk industry or of the Congress of the United States in enacting laws regulating interstate commerce or commerce which affects interstate commerce. Section 4 imposes standards, and those standards and the practices, inspection provisions and the like, set forth in the United States Public Health Service Standard Milk Ordinance are those included in the bill as the standard to be applied. The question arises as to why did we do that or why was that included? In the interest of not having something radical and entirely new to the experience of the dairy industry we looked around for regulations, or let us say, recommended regulations that have been applied and are in effect and, far more important to our knowledge, have served eminently well as a vehicle for the protection of the public health. We find, as the gentlemen from the Department of Health, Education, and Welfare just testified, that a number of States have adopted the United States Public Health Service Milk Ordinance and Code as their own and so have a number of municipalities in the United States. Section 5 states that the standards shall be uniform for all fluid milk and fluid-milk products which are shipped in interstate commerce to any municipality of the United States for consumption or which affect interstate commerce in such fluid milk and fluid-milk products. There is no reason that we can visualize why milk that meets the standard which has proved itself to be appropriate to the protection of the public health should be not equally acceptable and the same thing in one State as in another or in one municipality as in another. In section 6, effort was made to set forth a system of administration patterned very largely upon the manner in which the voluntary application of the United States Public Health Service Milk Ordinance and Code is now carried out. Section 7 establishes the effective date and manner of applicability of the United States ordinance and states that after this bill is enacted it shall become effective uniformly throughout the United States within 1 year after the date of the enactment of this act. That gives municipalities which have milk supplies which do not measure up to the United States Public Health Service Milk Ordinance and Code a year to get their houses in order to meet this sanitation regulation. For those States and municipalities which would already be acceptable under the code we can not see how the effective date of 1 year after enactment would impose any burden. I was pleased to hear the comments of the officials from the Department of Health, Education and Welfare with respect to the fact that there has been incorporated in this bill the United States Public Health Service Code, third printing, 1953 recommendations, and the ordinance itself has been subjected to certain amendments by virtue of the provisions of section 7. You may well ask why that was done. I think it must be borne in mind that the current United States Public Health Service Ordinance and Code is not a mandatory document. It is a recommended document. There is nothing whatsoever in the code that requires that even States that adopt the thing recognize each other's inspection. Therefore, it was necessary to go through this code in detail since it is designed as a pattern on which municipalities and States will develop their own ordinances and codes, and convert this code from one proposed to make a recommended pattern to one that would make it a real ordinance for application in and of itself. |