U.S. Supreme Court United States v. Carolene Products
Co., 304
U.S. 144 (1938) United States v. Carolene Products
Co. No. 640 Argued April 6, 1938 Decided April 25,
1938 304
U.S. 144 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
ILLINOIS Syllabus The Filled Milk Act of Congress of Mar. 4, 1923, defines the
term Filled Milk as meaning any milk, cream, or skimmed milk,
whether or not condensed or dried, etc., 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, dried, etc.; it declares that Filled Milk, as so
defined, "is an adulterated article of food, injurious to the
public health, and its sale constitutes a fraud upon the public",
and it forbids and penalizes the shipment of such Filled Milk in
interstate commerce. Defendant was indicted for shipping interstate
certain packages of an article described in the indictment as a
compound of condensed skimmed milk and coconut oil made in the
imitation or semblance of condensed milk or cream, and further
characterized by the indictment in the words of the statute, as "an
adulterated article of food, injurious to the public health." Held: Page 304 U. S. 145 1. That upon its face, and as supported by judicial knowledge,
including facts found in the reports of the congressional
committees, the Act is presumptively within the scope of the power
to regulate interstate commerce and consistent with due process.
Demurrer to the indictment should have been overruled. Hebe Co.
v. Shaw, 248 U. S. 297 . P. 304 U. S.
147 .

															2. It is no valid objection that the prohibition of the Act does
not extend to oleomargarine or other butter substitutes in which
vegetable fats or oils replace butter. P. 304 U. S.
151 .

															3. The statutory characterization of filled milk as injurious to
health and as a fraud upon the public may, for the purposes of this
case, be considered as a declaration of legislative findings deemed
to support the Act as a constitutional exertion of the legislative
power, aiding informed judicial review by revealing the rationale
of the legislation, as do the reports of legislative committees. P. 304 U. S.
152 . 7 F. Supp.
500 , reversed.

															APPEAL under the Criminal Appeals Act from a judgment sustaining
a demurrer to an indictment.

															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 U.S.C. §
61-63), [ Footnote 1 ] which
prohibits the shipment in Page 304 U. S. 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.

															Appellee was indicted in the district court for southern
Illinois for violation of the Act by the shipment in interstate
commerce of certain packages of "Milnut," a 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, United States v. Carolene
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
action said to be reserved to the states by the Tenth Amendment.
Appellee also complains that the Page 304 U. S. 147 statute denies to it equal 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 is the power "to
prescribe the rule by which commerce is to be governed," Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 196 , and
extends to the prohibition of shipments in such commerce. Reid
v. Colorado, 187 U. S. 137 ; Lottery Case, 188 U. S. 321 ; United States v. Delaware & 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 U. S. 420 ; McCormick & Co. v. Brown, 286 U.
S. 131 . The power "is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations
other than are prescribed by the Constitution." Gibbons v.
Ogden, supra, 22 U. S. 196 .
Hence, Congress is free to exclude from interstate commerce
articles whose use in the states for which they are destined it may
reasonably conceive to be injurious to the public health, morals or
welfare, Reid v. Colorado, supra; Lottery Case, supra; Hipolite
Egg Co. v. United States, 220 U. S. 45 ; Hope v. United States, supra, or which contravene the
policy of the state of their destination. Kentucky Whip &
Collar Co. v. Illinois Central R. Co., 299 U.
S. 334 . Such regulation is not a forbidden invasion of
state power either because its motive or its 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. United States, 239 U. S. 510 , 239 U. S. 514 ; Hamilton v.
Kentucky Page 304 U. S. 148 Distilleries & Warehouse Co., 251 U.
S. 146 , 251 U. S. 156 .
The prohibition of the shipment of filled milk in interstate
commerce is a permissible regulation of commerce, subject only to
the restrictions of the Fifth Amendment. Second. The prohibition of shipment of appellee's
product in interstate commerce does not infringe the Fifth
Amendment. Twenty years ago, this Court, in Hebe Co. v.
Shaw, 248 U. S. 297 ,
held that a state law which forbids the manufacture and sale of a
product assumed to be wholesome and nutritive, made of 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 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 Page 304 U. S. 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 to health and
facilitates fraud on the public. [ Footnote 2 ]

															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 Page 304 U. S. 150 a valuable food of almost universal use, thus making fraudulent
distribution easy and protection of the consumer difficult.
[ Footnote 3 ] Page 304 U. S. 151 Here, the prohibition of the statute is inoperative unless the
product is "in imitation or semblance 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; South Carolina v. Barnwell Bros. Inc., 303 U. S. 177 . 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. Pennsylvania, 127 U. S. 678 ; Capital City Dairy Co. v. Ohio, 183 U.
S. 238 . Compare McCray v. United States, 195 U. S. 27 , 195 U. S. 63 ; Purity Extract & Tonic Co. v. Lynch, 226 U.
S. 192 .

															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 , 226 U. S. 160 ; Miller v. Wilson, 236 U. S. 373 , 236 U. S. 384 ; Hall v. Geiger-Jones Co., 242 U.
S. 539 , 242 U. S. 556 ; Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649 , 262 U. S.
661 . Page 304 U. S. 152 Third. We may assume for present purposes that 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.

															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 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. [ Footnote 4 ] See Metropolitan Casualty Ins.
Co. v. Page 304 U. S. 153 Brownell, 294 U. S. 580 , 294 U. S. 584 ,
and cases cited. The present statutory findings affect appellee n
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.

															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 male the subject of
judicial inquiry, Boren'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 U. S. 543 .
Similarly we recognize that the constitutionality of a statute,
valid on its face, may be assailed by proof of facts tending to
show that the statute as applied to a particular Page 304 U. S. 154 article is without support in reason 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. Alton R. Co., 295 U.
S. 330 , 295 U. S. 349 , 295 U. S. 351 , 295 U. S. 352 ; see Whitney v. California, 274 U.
S. 357 , 274 U. S. 379 ; cf. Morf v. Bingaman, 298 U. S. 407 , 298 U. S. 413 ,
though the effect of such proof depends on the relevant
circumstances of each case, as, for example, the administrative
difficulty of excluding the article from the regulated class. Carmichael v. Southern Coal & Coke Co., 301 U.
S. 495 , 301 U. S.
511 -512; South Carolina v. Barnwell Bros., 303 U. S. 177 , 303 U. S.
192 -193. But, by their very nature, such inquiries,
where the legislative judgment is drawn in question, must be
restricted to the issue 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 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 substituted for it. Price v. Illinois, 238 U.
S. 446 , 238 U. S. 452 ; Hebe Co. v. Shaw, supra, 248 U. S. 303 ; Standard Oil Co. v. Marysville, 279 U.
S. 582 , 279 U. S. 584 ; South Carolina v. Barnwell Bros., Inc., supra, 303 U. S. 191 ,
citing Worcester County Trust Co. v. Riley, 302 U.
S. 292 , 302 U. S.
299 .

															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. Page 304 U. S. 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 case.

															[ Footnote 1 ]

															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
. . ."

															[ Footnote 2 ]

															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.

															[ Footnote 3 ]

															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. Ala.Agri.Code, 1927, § 51, Art.
8; Ariz.Rev.Code, 1936 Supp., § 943y; Pope's Ark.Dig.1937, § 3103;
Deering's Cal.Code, 1933 Supp., Tit. 149, Act 1943, p. 1302;
Conn.Gen.Stat., 1930, § 2487, c. 135; Del.Rev.Code, 1935, § 649;
Fla.Comp.Gen.Laws, 1927, §§ 3216, 7676; Ga.Code, 1933, § 42-511;
Idaho Code, 1932, Tit. 36, §§ 502-504; Jones Ill.Stat.Ann., 1937
Supp., § 53.020(1), (2), (3); Burns Ind.Stat., 1933, § 35-1203;
Iowa Code, 1935, § 3062; Kan.Gen.Stat., 1935, c. 65, § 707;
Md.Ann.Code, Art. 27, § 281; Mass.Ann.Laws, 1933, § 17-A, c. 94;
Mich.Comp.Laws, 1929, § 5358; Mason's Minn.Stat., 1927, § 3926;
Mo.Rev.Stat., 1929, §§ 12408-12413; Mont.Rev.Code, Anderson and
McFarland, 1935, c. 240, § 2620.39; Neb.Comp.Stat., 1929, §
81-1022; N.H.Pub.L.1926 v. 1, c. 163, § 37, p. 619; N.J.Comp.Stat.,
1911-1924, § 8l-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-O, p. 2493; Williams
Tenn.Code, 1934, c. 15, §§ 6549, 6551; Vernon's Tex.Pen.Code, Tit.
12, c. 2, Art. 713a; Utah Rev.Stat., 1933, §§ 3-10-59, 3-10-60;
Vt.Pub.L., 1933, Tit. 34, c. 303, § 7724, p. 1288; Va.1936 Code, §
1197c; W.Va.1932 Code, § 2036; Wis.Stat., 11th ed.1931, c. 98, §
98.07, p. 1156; cf. N.Mex.Ann.Stat., 1929, §§ 25-104,
25-108. Three others have subjected its sale to rigid regulations.
Colo.L.1921, c. 30, § 1007, p. 440; Ore.1930 Code v. 2, c. XII, §§
41-1208 to 41-1210; Remington's Wash.Rev.Stat. v. 7, Tit. 40, c.
13, §§ 6206, 6207, 6713, 6714, p. 360, et seq. [ Footnote 4 ]

															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.
California, 283 U. S. 359 , 283 U. S.
369 -370; Lovell v. Griffin, 303 U.
S. 444 , 303 U. S.
452 .

															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 U. S. 536 ; Nixon v. Condon, 286 U. S. 73 ; on
restraints upon the dissemination of information, see Near v.
Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S.
713 -714, 283 U. S.
718 -720, 283 U. S. 722 ; Grosjean v. American Press Co., 297 U.
S. 233 ; Lovell v. Griffin, supra; on
interferences with political organizations, see Stromberg v.
California, supra, 283 U. S. 369 ; Fiske v. Kansas, 274 U. S. 380 ; Whitney v. California, 274 U. S. 357 , 274 U. S.
373 -378; Herndon v. Lowry, 301 U.
S. 242 , and see Holmes, J., in Gitlow v.
New York, 268 U. S. 652 , 268 U. S. 673 ;
as to prohibition of peaceable assembly, see De Jonge v.
Oregon, 299 U. S. 353 , 299 U. S.
365 .

															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. Nebraska, 262 U.
S. 390 ; Bartels v. Iowa, 262 U.
S. 404 ; Farrington v. Tokushige, 273 U.
S. 284 , or racial minorities, Nixon v. Herndon,
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 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 428 ; South Carolina v. Barnwell Bros., 303 U.
S. 177 , 303 U. S. 184 ,
n 2, and cases cited.

															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 U. S.
35 , 219 U. S. 43 . Manley v. Georgia, 279 U. S. 1 , 279 U. S. 6 . The
provisions on which the indictment rests should, if possible, be
construed to avoid the serious question of constitutionality. Federal Trade Comm'n v. American Tobacco Co., 264 U.
S. 298 , 264 U. S. 307 . Panama R. Co. v. Johnson, 264 U.
S. 375 , 264 U. S. 390 . Missouri Pacific R. Co. v. Boone, 270 U.
S. 466 , 270 U. S. 472 . Richmond Co. v. United States, 275 U.
S. 331 , 275 U. S. 346 .
If construed to exclude from interstate commerce wholesome food
products that demonstrably are neither injurious to health nor
calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U.
S. 402 , 270 U. S.
412 -13. See People v. Carolene Products Co., 345 Ill. 166. Carolene Products Co. v. McLaughlin, 365
Ill. 62, 5 N.E.2d 447. Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v.
Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the
indictment that Milnut "is an adulterated article of food,
injurious to the public health," tenders an issue of fact to be
determined upon evidence.