Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Gentlemen: Attention: Vs. W.

of Jenuary 11, 1941, requ partment ae to the type o from the requirementsOZ whioh reads as fol.lows: mea6ur0 ol

ihe stnnaard meas- eolcagsaconteining one and one-half, enty-live, SiSty,

atit shall be unlawful for , aeeoclat2on,or corporation e, es11 or offer for sale in

(lnclufiirq berrels, IWC:W, c=rtona an9 other containers)of the above stemlard net weights. *%3-o.3. That each package of whe.at Slour, other cereal Elour ~.n3. c9rn med ahall have the net weight, name 0S menufacturer (ne8nin~the ~eraon, Slrm, ~ssocistl~on,or corporctlonknich processee the wheat or other

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cereal into flour, or whioh'prooessesthe oorn into meal) an8 the name of the place where mlll- ed prlntea or pls.lnlymarked on it in letters and figures clearly readable; and that it shall be unlawftilfor wheat flour, other cereal floup or aorn meal, to be packed for sale, offered for sale or sold within the State of Texas un- leas It shall be so labellea. ‘Sec. 4. That the provisions of thls Act shall not apply to the retalllng of wheat flour, other oered. flour or corn meal Blreot to the consumer from bulk stock, nor to sales of flour to bakeries for use in euch bakeries, nor to the exohange of flour or meal for xheat or corn by grist mills and other mills grlnainq for toll for producers; e.nCi thr.tnothin.?herein contAined shall be held to ~only to Eny proWet+ such as preQaretl-ozncakeflour. czi!<eflour or other snecialtv o.zc%edand distribsted ln iden- tiflea orirrlnalDzckaCe. t!3enet contents of which ere five (5) oounds or less. 'Sea. 5. That any violation of thls Act shall be a mledemeanor,ana upon ccnvlotlon the offender sh&l be fined not lees than twenty-five,DolJ.ors($25) nor more than One Hunared Dollars ($100) for each oSfenee.8 (Emphasisours) Xoa state thst: ' '*ThisDepartment,as well as food ana &ug authorities,has constrid the unaersooredpor- tions of Seatlon 4 a8 meaning bnreo~rea pancalre flour, prepared cake flour, or other prepared epeclnltles.' In other worde, we have construed It to mean uheat flour or other cereal flour to which has been eddea other lnqredlenta;for ln- stance, a leavenlnq agent, salt, sugar, ehorten- lng, powaerea mll'd,flavoring,or other ingre- dients which would ppenzre said flour for cook- ing after the aadltion of water or milk only by the user. We now are confronted with various pro- ducts which the manufacturers thereof olaim to

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fall within this exemption; for instance, 'whole- wheat flour',.packed in tno pound:.oardboardoar- tdns. Said wholewheat Slour being strictly a general Duroose wholewheat flour with no other ingredientsudd.ed,the company manufacturingJo 8ame, claiming it to be a 'specialty.‘- "flow,the first question Is, should this two pound packaTe of genr?rxlnurdofie'whole- wheat flour' be exempt from the provisions of the Act because it is packed In a cardboard oarton bearing the trade-mark and firm name of a particular mill,~said mill olalafng the pack- age~to be a 'speoialty?' *We have another package confrontlng.ue that contains 2 3/4 pounds of 'wheat flour'. This flour is reconmenaed for several purposes and oan be used for ailypurpose for which others high grade wheat flours can be ,uaed. It is paokerlin a cardboard carton and labelad 'cake flour' but it Is not a 'pregared aake flour' having additional ingreaientsadded. The claim of the manufacturerIs that it le exempt from the provisions of the a& unclerthe term of 8eotion 4. 'The eeaond question is, ehould only '~-FL- p-4 cake flour' be exempt from the provlalone of the aot or should any 'wheat flour' labeled by the manufactureras 'cake flour' be exempt7 *The third question is, should only Iore- ps& spaoialtiee'be,exempt from the provmone of the law or should any 'wheat flour' or 'other cereal flour' pack~edin containersof 6 pounds or less and cleclaredby the manufacturerto be a specialty be exempt from the sot?" The answer to each of your questions will depend upon a proper interpretationof the exemptionprovided In Section4 for *any product such as prepared pancake flour, aakc flour or other speoialty pcked and distributed in the identifiedoriginal pa&ace, the netcontents of which are five (5) pounds or less.* The caption OS the Aot provides

..._s-

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for thie exoeptlon In the following language, *and such preparedproducts of wheat or oorn selling In less than five (5) pounadots.@ The word *preparedwIK defined by Webster as "maderzady, fit, or suitable beforehand;adopted, ready, * l It has been Judiciallydefined In oonneotlon . .

ulth goods as UputtIngthem in a state for use," (People v. Woolen,291 N. Y. Eupp. 665, 666, 161 MEO. 256); or as goods which have been advanced from their raw or natural ‘stetetowards the condition of their ultimate use. United State8v. Conkey and Co., 12 Ct. CUSt. App. 552, 555. For example."preparedprunes" are prunes that are first dried then stewed in sugar syrup and finally sealed In cans. UatIonal Grocery Co. v. ?ratt-Low Pre- eervingCo. 170 Wash. 575, 17 Tao. (2d) 51, 52. "Prepared P flour" may ie aselS-rIsIngflour", that la, flour (wheat, buckwheat,corn) with baking powder ana salt In the right proportions(webeter);or, flour with salt, soda, and phosphateadded in proper proportions and properly mixed, used In making griddle cakes, biscuits, and other hot breads dr cakes. Royal SalringCo. v. Federal Trade Comm. (C.C.A.)56 Fed. (2d) 581, 562. As stated by the author of ExxperlmentalCookery flour terminologyhas become con- rusing and, a speciallyprepared oake flour may be some- thing entirely different. Plain flour, wheat flour or white flour Is the Sine gralned product obt?lned in the commercialuIlllng OS wheat, and consists essentiallyof the stsroh and gluttenof the endosnerm. Vhole-wheat flour, entlre- wheat flour, or graham flour Is the product made by grind- Ing wheat and conteins in their natural proportions, 811 of th; constltuents'ofthe cleaned grain. Definitions from Lone, ExoerImenta.1Cookery (2nd Ed:, 1937), John Wiley and Sons, 1GewYork. Flour may be made from either hard or soft wheat. 'Cake Flour4 Is milled from eoft wheat. eencr.allra "short* Patent and the granulationvery fine. '(&erImentnl Cook- Pi %& 1 r'louremecially orsonred for cskemakirq need not ascessarilycontain iXc14edincredlentfi.?fiechrrectcris- tics whI&merIf Its classlfIcatIonas a specialty, that Is, cake flour, may result entirely from the refining process.

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b'ebelieve that the phrase 'prepsredpancake .flour,cake flour or other speoIalty*refers to wheat products and blends paoked and distributed in identified original package6 of five pounds or less which are pre- Dared for special or limited uses. In addition, in order to meet the requirementsof a nspeclalty",the manuf'actur-.J er must hold the product out or offer it for such speolal or.limItedusse. A *speoialtyais defined by Webster as, *an r/ objeat or class of obJeots distinguishedby some speoial characteristic,Individualquality, or the like,;especial- ' ly,~a product,usunllymanufactured,of a special kind, made under a special patent, serving one special _~ purnose, -:.~~ eta: __

The qualities of a specialty ae'applied to flour mrryresult not only from the process by whioh it is made (differingfrom the usual), and the consumer use toward i-- which It is directed, but also from limitationsupon con- sumer u6e. It is well known that the consumingpublic buys considerablymore *lIght6,than *whole-wheat"flour. It Is likewise true that whole-wheat sgeolaltiea,flour and meal made from the whole grsin, useful, for example, in making whole-wheatmuffins or bread, spolls more quickly beoa~use of weavll infestationthan refined flour, and purchas@of such flour for modorate consumer use should be and are In relatively small quantities. See Wllmot and Batjer, Food F'orthe Fsmllx, J. B. Lippincott Co., 1938. Applying these tests, in answer to your first question, If the genrral:purpose*whole-wheatflourY Is otherwiseexempt under Section 4 of Article 1042s Gf'Vernon's Penal Code and Is prepared for and held out to the publio at3a RspecIaltynIt will be exempt from the size require- ments of Section 1. _' Likewise, in answer to your second question, if the %rhoZe-whes.tflour” there Bescribed is prepared for and held out to the publio as a "oake flour', It will be exempt. ,-, your third question Is a general one and can only be answered by applying the tests before given. lf

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a produot Is prepared for a soeclal use or uses and Is offered or held out to the pub110 as such a *speoialtyn It may be so exempt. Very truly your6 ATTORNEY GENERAL OF TEXAS

i"LRSTASSISTANT A'XJRNEYGEN- BY JD6:Ll-S Aesistmt

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