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AGO 1951 No. 116 - August 31, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

FLUID MILK ACT

County and city ordinances regulating fluid milk and fluid milk products are applicable to all milk and milk products produced within the state.  Milk and milk products produced without the state are only subject to regulation by the Director of the Department of Agriculture.

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                                                                 August 31, 1951

Honorable Sverre N. Omdahl
Director
Department of Agriculture
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 116

Dear Sir:

            Your letter of August 22, 1951, propounds the following problems:

            "A county ordinance requires that the milk distributed in that county not contain over 75,000 bacteria per milliliter.  The state law sets a maximum of 100,000 bacteria per milliliter, but does not set a minimum.  Can shippers from outside the county and also from outside the state distributing milk within this county disregard the county ordinance and merely be under the state's maximum?"

            We conclude that milk producers and distributors residing within the state must comply with local ordinances, but nonresident milk producers and distributors are only regulated by state law.

                                                                     ANALYSIS

            A. Milk producers and distributors from outside a county, but not outside the state, must comply with the ordinances of such county.  Section 18, chapter 168, Laws of 1949, (Rem. Rev. Stat. 6266-46, 1949 Supp.), reads as follows:

             [[Orig. Op. Page 2]]

            "(a) Whenever a milk producer or milk distributor intends to deliver or sell fluid milk or fluid cream outside the jurisdiction of his own local milk inspection service unit, the Director of Agriculture, on application and after investigation and consultation with the health officer of each local milk inspection service unit concerned, shall designate which local milk inspection service unit shall conduct the inspections.  The Director of Agriculture, in making such designations, shall in addition to other matters considered by him, take into consideration the geographical convenience of each local milk inspection service unit and the percentage of fluid milk or fluid cream sold and/or delivered within the jurisdiction of such local milk inspection service units.  All fluid milk and fluid milk products so inspected may be sold and delivered within the jurisdiction of any local milk inspection service unit; Provided, That applicable ordinances of political subdivisions of government in said jurisdiction more stringent than, and not inconsistent with, the provisions of this act are not thereby violated.  The local milk inspection service unit designated by the Director of Agriculture to render such inspection service shall issue permits in accordance with applicable provisions of all local ordinances of each city, township or county into which fluid milk or fluid milk products are sold or delivered."  (Emphasis supplied)

            For the sake of clarity, the following exemplification of the operation of the aforesaid section is given:

            Although the state law sets a maximum bacteria count of milk at 100,000 per millimeter an ordinance of a county fixes a maximum of 75,000.  X producer lives in B county and wishes to distribute milk in A county.  The Director of Agriculture, upon application, determines whether the milk inspection unit of A or B county shall conduct the inspection of the production of X's milk.  Then, the unit designated by the Director issues permits "in accordance with applicable provisions of all local ordinances of * * * [A] county," if such are chapter "more stringent than, and not inconsistent with, the provisions of" chapter chapter 168,supra.

             [[Orig. Op. Page 3]]

            B. The legislature did not set up the same procedure for the inspection of milk produced outside the state.  It is fundamental that the Director of Agriculture could have no authority to designate any person or group of persons an inspection unit for a foreign state, or subdivision thereof.  The law relative to milk produced without Washington is contained in section 11, chapter 168,supra, (Rem. Rev. Stat. 6266-39, 1949 Supp.), which reads as follows:

            "Milk and milk products from outside the State of Washington may not be sold in the State of Washington unless produced and/or pasteurized under provisions equivalent to the requirements of this act;Provided, that the Director of Agriculture shall satisfy himself that the authority having jurisdiction over the production and processing is properly enforcing such provisions."  (Emphasis supplied)

            "This act," and not "city and county ordinances," governs the foreign milk producer.  We are, therefore, of the opinion that so long as the foreign producer complies with "provisions equivalent to the requirements of this act," he cannot be prohibited from distributing milk within this state.  This view is in accord with our opinion under date of March 13, 1950, directed to the Prosecuting Attorney of Clark County [[Opinion No. 49-51-235]].  On pages 5 and 6 we said:  Prosecuting Attorney of Clark County.  On pages 5 and 6 we said:

            "In so far as milk products manufactured outside the state of Washington are concerned section 11 of Chapter 168, Laws of 1949 (Rem. Rev. Stat. 6266-39, Supp. 1949) sets forth the conditions under which they may be sold within the state.  When the Director of Agriculture has satisfied himself that such products are being produced and/or pasteurized under provisions equivalent to the requirements of the state law of Washington and that such provisions are being enforced, milk and milk products from outside the state may be sold within the state without becoming subject to more stringent ordinances of a city wherein they may be sold or distributed.  The proviso appearing in section 18, chapter 168, Laws of 1949 (Rem. Rev. Stat. 6266-46, Supp. 1949) and quoted above must be construed as modifying the section wherein it appears and as  [[Orig. Op. Page 4]] such it has no application to milk or milk products coming from outside the state which as stated above are governed by another section of the law."  (Emphasis supplied)

            This view is also sustained by the recent case of State ex rel. Safeway v. Omdahl, 137 Wash. Dec. 722 [[37 Wn.2d 773]], wherein our court held at page 725:

            "A foreign producer must secure a permit to transport into and sell his product in this state.  The authority authorized by the act to deal with the producer is the director of agriculture.  The director has the duty to determine whether such producer is governed by laws equivalent to the requirements of our act and such laws are being enforced.  He is required to periodically inspect all milk plants where milk and milk products are produced.

            "(2) It must necessarily follow that it is the director who must issue a permit to a foreign producer, if found qualified, to transport into and sell his product in this state.  The act does not give a unit the authority to grant a permit to a foreign producerIts whole tenor indicates that the acts and authority of the local unit must be confined to its territorial limits, and it must therefore follow that it can issue permits only to producers operating therein, or in some other unit within the state."  (Emphasis supplied)

            Only a local inspection unit is authorized to issue permits in accordance with the more stringent city or county ordinances, section 18, supra.  But foreign producers secure their permits from the Director of the Department of Agriculture‑-not from local inspection units, State ex rel. Safeway v. Omdahl, supra.  These latter permits are issued if the milk is being produced under "provisions equivalent to the requirements of this act," i.e., the law of the State of Washington, section 11, supra.  "Local ordinances" can hardly be interpreted to be "requirements of this act."

Very truly yours,

SMITH TROY
Attorney General

ROBERT A. COMFORT
Assistant Attorney General

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