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Opinions of the Attorney General 23 OPINIONS OF THE ATTORNEY GENERAL 23 Opinion No. 1'7 It must contain not less than four per centum by weight of solids." Ice Cream, Ice Cream Mix-Milk Sherbet, Milk Sherbet Mix-Dairy Ice cream is defined by Section 3- Division-Department of Agriculture 2404, Revised Codes of Montana, 1947, as: Held: Under the provisions of Sec­ tion 3-2404, Revised Codes of "5. Ice cream is a frozen product Montana, 1947, Milk sherbet made with pure, sweet milk, cream, mix, when manufactured and skim milk, evaporated or condensed sold as such, must contain at milk, evaporated or condensed skim least 0.35% of acid. milk, dry milk, cITy skim milk, pure milk fat, or wholesome sweet butter, May 11th, 1951. or any combination of any such pro­ ducts, with or without sweetening, Mr. Thomas A. McMaster, Chief clean wholesome eggs or egg pro­ Dairy Division ducts, and with or without the use Department of AgTiculture of harmless flavoring and coloring. Helena, Montana Ice cream must contain not less than ten per centum of milk fat, not less Dear Sir: than thirty-three per centum total so­ lids, and mayor may not contain You have requested my opinion on pure and haI1mless edible stabilizeT. the following question: Ice cream may contain not to exceed Under the provisions of Section one per centum gelatin. No fTozen 3-2404, Revised Codes of Montana, milk or milk product shall be man­ 1947, milk sherbet must contain at ufactured O!l' sold unless it contains least 0.35% acid. Under the provi­ at least ten per centum butterfat, sions of the same statute ice cream excepting sherbets and ices and other and ice cream mix must meet the exceptions shown in this same sec­ same requirements and must have tion. All ice cream must be manufac­ at least 10% butterfat and at least tured from pasteurized ice cream 33% total solids. The mix used in the mix." manufacture' of milk sherbet is the Subsection 8 of Section 3-21404, Revis­ same as ice cream mix except that ed Codes of Montana, 1947, provides acid is added to the sherbet mix and that: "Ice cream mix is a pasteurized, the sherbet mix contains a very low unfrozen product used in the ,manufac­ pel'centag,e 0If buttemrut. Do the pro­ ture of ice cream and must comply visions of Section 3-2404, Revised with all the requirements for ice cream Codes of Montana, 1947, require that as set forth herein." Thus, ice cream sherbet mix contain 0.35% acid in mix is required to oontain at least order to be sold as such in the State 10% butterfat and at least 33% to­ of Montana? tal solids. Section 3-2404, Revised Codes of The mix used in the manuf,acture of Montana, 1947, contains no specific de­ milk sherbet is exactly the same as the finition of milk sherbet mix ,and makes mix used in the manufactUre of ice no specific requirement as to its man­ cream except that it does not contain ufacture and sale. Milk sherbet is de­ 10% butterfat and does not contain fined in Section 3-2404, Revised Codes 33% total solids, but does contain at oaf Montana, 1947, as: least 0.35% acid. In other words, milk sherbet is made from regular ice cream "9. Milk sherbet means the pure, mix which has been thinned or dilut­ clean, frozen produce made from milk ed by the addition of water and at product, water and sugar, with harm­ least 0.35% of acid. If milk sherbet mix less fruit or fruit juice flavoring and were frozen without the addition of with or without harmless coloring, acid the resulting product would be a which must contain not less than 0.35 very low grnde ice cream, that is, ioe of one per centum of acid, as deter­ cream containing less that 3 % butter­ mined by titrating with standard al­ fat. The legislature enacted the pro­ kali and expressed as lactic acid, and visions of Section 3-2404. Revised Codes with or without added stabilizer com­ of Montana. 1947. requiring that milk posed of wholesome edible material. sherbet contain 0.35% acid in order to 24 OPINIONS OF THE ATTORNEY GENERAL make milk sherbet distinguishable from Opinion No. IS ice cream. Without the addition of acid to the sherbet mix the low butterfat ice Public Welfare Department-State Welfare Board-Board of County cream could easily be sold to the pub­ Commissioners-County Welfare lic as ice cream. This is especially true Board-Statutes-Sections 71-216, where ice cream is used in milk shakes, 71-401, 71-503, 71-601, Revised Codes malted milks, parfaits and similar fro­ of Montana, 1947-Welfare zen milk deserts. With the addition of Applications-Rules and Regulations. acid to the ice cream resulting milk Held: The State Board of Public sherbet is easily distinguishable even Welfare has power to make such in milk shakes, malted milks, parfaits, rules and regulations as are ets., because the acid gives the product necessary and reasonable to ex­ a sour flavor. pedite the approval of appli­ If milk, cream, sugar, eggs and the cations which rules and regula­ other products mentioned in Subsection tions are binding upon County 5 of Section 3-2404, Revised Codes of Welfare Boards. Montana, 1947, are mixed together, the resulting product in an unfrozen state May 21st, 1951. is ice cream mix and wihen the product Mr. N. C. Briggs is frozen the Tesulting product is ice State Administrator cream. In order to distinguish ice Department of Public Welfare cream mix or ice cream from sherbet Helena, Montana mix or sherbet it is necessary that acid Dear Sir: be added to the ingredients of the pro­ duct. If acid is not added, in an un­ You have requested an opinion on the frozen state the product is ice cream following: mix and must meet the requirements of Section 3-2404, Revised Codes of Since the amendments to the Bo­ Montana, 1947, that is, contain 10% cial Security Act effective July I, butterfat and at least 33% total solids. 1951, require that aid to applicants It would be impossible to enforce the for public assistance shall be fur­ provisions of Section 3-2404, Revised nished with reasonable promptness, Codes of Montana, 1947, relative to ice and reasonable promptness has been cream and ice cream mix if milk sher­ interpreted by the Federal agency to bet is manufactured and sold with­ mean that payment shall be made out at least 0.35% acid being added. It to eligible persons within 30 days is impossible to distinguish milk sher­ from date of application, and the bet mix from low butterfat ice cream county welfare boards in many cases mix except for the acid content. There­ only meet once each month, how can fore, to prevent the public from being the state department be assured that defrauded by unscrupulous operators such application will be processed the Legislature enacted the provisions within the 30 day period? of Section 3-2404, Revised Codes of Section 7.1-214, Revised Codes of Montana, 1947, to insure that the pub­ Montana, 1947, reads as follows: lic could distinguish between milk sherbet and low butterfat ice cream "The board of county commission­ and milk sherbet mix and low butter­ ers, ex-officio, shall be the county fat ice cream mix by requiring that welfare board and is hereby authoriz­ acid be added to milk sherbet and to ed to devote such additional time for the mix used to make milk sherbet. public welfare matters as may be Therefore, it is my opinion that Sec­ found necessary. The members of tion 3-2404, Revised Codes of Montana, the oounty welfare board shall re­ 1947, requires that milk sherbet mix ceive the same compensation for must contain -at least 0.35% acid when their services and the SMIle mileage manufactured or sold as such in the when acting as the county board of state of Montana. public welfare as they receive when acting as the board of county com­ Very tmly yours, missioners and shall be limited as ARNOLD H. OLSEN to meetings as now provided by law, Attorney General and the compensation and mileage .
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