HUTCHINSON ICE CREAM COMPANY et al., Plffs. in Err., v. STATE OF IOWA. NO 40. A. B. CROWL, Plff. in Err., v. COMMONWEALTH OF PENNSYLVANIA. NO 50.

These cases were argued together. In each a state statute which prohibits the sale of ice cream containing less than a fixed percentage of butter fat is assailed as invalid under the 14th Amendment; the supreme court of each state having held its statute constitutional. State v. Hutchinson Ice Cream Co. 168 Iowa, 1, L.R.A. 1917B, 198, 147 N. W. 195; Com. v. Crowl, 245 Pa. 554, 91 Atl. 922. Iowa makes 12 per cent the required minimum; Pennsylvania 8 per cent. The material provisions of the several statutes are copied in the margin.1

The right of the state under the police power to regulate the sale of products with a view to preventing frauds or protecting the public health is conceded by plaintiffs in error. And they do not contend that the particular percentages of butter fat set by Iowa and Pennsylvania are so exacting as to be in themselves unreasonable. Thirteen other states have by similar legislation set 14 per cent as the minimum; five other states 12 per cent; only eight states have fixed a percentage as low as Pennsylvania; and the United States Department of Agriculture has declared 14 per cent to be standard.2 The main objection urged is this: To require that ice cream, in order to be legally salable, must contain some butter fat, is a regulation so unreasonable and arbitrary as to be a deprivation of property without due process of law and a denial of the equal protection of the laws. To support this contention the following trade facts are shown:

The ice cream of commerce is not iced or frozen cream. It is a frozen confection—a compound. The ingredients of this compound may vary widely in character, in the number used, and in the proportions in which they are used. These variations are dependent upon the ingenuity, skill, and judgment of the maker, the relative cost at a particular time or at a particular place of the possible ingredients, and the requirements of the market in respect to taste or selling price. Thus, some Philadelphia ice cream is made of only cream, sugar, and a vanilla flavor. In making other Philadelphia ice cream the whites of eggs are added; and according to some formulas vanilla ice cream may be made without any cream or milk whatsoever; for instance, by proper manipulation of the yolks of eggs, the whites of eggs, sugar, syrup, and the vanilla bean. All of these different compounds are commonly sold as ice cream; and none of them is necessarily unwholesome.

Plaintiffs in error contend that as ice cream is shown to be a generic term embracing a large number and variety of products, and the term as used does not necessarily imply the use of dairy cream in its composition, it is arbitrary and unreasonable to limit the ice cream of commerce to that containing a fixed minimum of butter fat. But the legislature may well have found in these facts persuasive evidence that the public welfare required the prohibition enacted. The facts show that, in the absence of legislative regulation, the ordinary purchaser at retail does not and cannot know exactly what he is getting when he purchases ice cream. He presumably believes that cream or at least rich milk is among the important ingredients; and he may make his purchase with a knowledge that butter fat is the principal food value in cream or milk. Laws designed to prevent persons from being misled in respect to the weight, measurement, quality, or ingredients of an article of general consumption are a common exercise of the police power. The legislature defines the standard article or fixes some of its characteristics; and it may conclude that fraud or mistake can be effectively prevented only by prohibiting the sale of the article under the usual tradename, if it fails to meet the requirements of the standard set. Laws prohibiting the sale of milk or cream containing less than fixed percentages of butter fat present a familiar instance of such legislation. Cases in the state courts upholding laws of this character are referred to in the margin.3 This court has repeatedly sustained the validity of similar prohibitions. Schmidinger v. Chicago, 226 U. S. 578, 57 L. ed. 364,33 Sup. Ct. Rep. 182, Ann. Cas. 1914B, 284; Armour & Co. v. North Dakota, 240 U. S. 510, 60 L. ed. 771, 36 Sup. Ct. Rep. 440, Ann. Cas. 1916D, 548.

It is specially urged that the statutes are unconstitutional because they do not merely define the term 'ice cream;' but arbitrarily prohibit the sale of a large variety of wholesome compounds theretofore included under the name 'ice cream.' The acts appear to us merely to prohibit the sale of such compounds as ice cream. Such is the construction given to the act by the supreme court of Iowa. State v. Hutchinson Ice Cream Co. 168 Iowa, 1, 15, L.R.A. 1917B, 198, 147 N. W. 195, which is, of course, binding on us. We cannot assume, in the absence of a definite and authoritative ruling, that the supreme court of Pennsylvania would construe the law of that state otherwise. The conviction here under review was for selling the 'compound' as ice cream, so that we are not called upon to determine whether the state may, in the exercise of its police power, prohibit the sale even of a wholesome product, if the public welfare appear to require such action—and if, as here, interstate commerce is not involved. See Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257; Schollenberger v. Pennsylvania, 171 U. S. 1, 15, 43 L. ed. 49, 54, 18 Sup. Ct. Rep. 757.

In view of the conclusion stated above, it is unnecessary to consider whether the statutes are or are not sustainable as health measures; and upon this we express no opinion.

The judgment in each case is affirmed.