The limited writ of certiorari in this case was granted to review petitioners' conviction, affirmed by the Circuit Court of Appeals, for a violation of the Filled Milk Act. The Court was moved to allow the petition in order to examine the contentions that the accused articles of food cannot, under the due process clause of the Fifth Amendment to the Constitution, be banned from commerce when these compounds are nutritionally sufficient and not 'in imitation or semblance' of milk or any milk product within the meaning of the statute and are not sold as milk or a milk product.
The contentions which are raised by petitioners to avoid their conviction were not dealt with in our prior decision which upheld the act's validity upon demurrer to an earlier indictment which charged its violation. United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. Since these issues are important to those affected by the act, certiorari was granted. 321 U.S. 760, 64 S.Ct. 845. Questions of due process under the Fourteenth Amendment, similar to those presented here, had arisen from state filled milk legislation with varying results. Consideration by this Court of the filled milk legislation of Kansas appears in Sage Stores et al. v. Kansas, 323 U.S. 32, 65 S.Ct. 9.
The facts which are undisputed are fully set out in the opinions of the District Court and the Circuit Court of Appeals. It is sufficient for our purposes to summarize them as follows. The corporate petitioner sells the products mentioned in the indictment which are manufactured for it by another corporation from skim milk, that is, milk from which a large percentage of the butterfat has been removed. The process of manufacture consists of taking natural whole milk, extracting the butterfat content and then adding cottonseed or cocoanut oil and fish liver oil, which latter oil contains vitamins A and D. The process includes pasteurization of the milk, evaporation, homogenization of the mixture and sterilization. The compound is sold under various trade names in cans of the same size and shape as those used for evaporated milk. The contents of the can are practically indistinguishable by the buying public from evaporated whole milk, but the cans are truthfully labeled to show the trade names and the ingredients.
The indictment charged the petitioner corporation and the individual petitioners, its president and vice president, with violation of the statute by making interstate shipments of the compounds contrary to Section 2. The convictions and sentences are assailed as improper on three grounds: first, that the petitioner's compounds were not covered by the rationale of the Filled Milk Act; second, that the Act did not cover the compounds because they were not 'in imitation or semblance' of a milk product; and third, that since the compounds were wholesome food products and sold without fraud, in any sense, Congress could not constitutionally prohibit their interstate shipment.
First. As a basis for petitioner's position that the Filled Milk Act does not cover their compounds, it is argued that the nutritional deficiencies of filled milks led to the Act's enactment so as to protect the public health. These deficiencies occurred because the extraction of the butterfat from the whole milk removed a large proportion of the fat soluble vitamins A and D. The hearings on the bill and the course of the debate make it quite clear that this vitamin deficiency was of major importance in bringing about the enactment of the act. Petitioners then offered in the trial court to prove that since the passage of the Filled Milk Act in 1923, the technique of fortification of foods with vitamins A and D had advanced to a point where these vitamins could be restored to skim milk compounds so that the compounds were equally valuable in that respect to whole milk products and that their products had been so enriched. The offer was refused.