158 Journal of the Society of Dairy Technology, Vol. 14, No. 3, 1961

D A I R Y L E G I S L A T I O N A N D I T S P I T F A L L S

BY P A T R I C K O ’ N E I L L

Secretary, National Dairymen’s Association

Paper given to the Bristol Branch on March 21th. 1961

We all know there is such a mass of rules and regulations regarding milk and milk products that it is surprising most of us do not spend our lives in the Courts.

Why is this? Dr. W. A. Lethem (I) has explained that it is because the legislature,-as a result of many years of law making-evolves regulations that are reasonable. No legislation can be en- forced which does not obtain the support and approval of the majority of the people concerned, in this case the milk industry and the local authorities. That, in turn, implies the support of the general public, or at least the majority of it. All laws are not popular; far from it. Many of them are thoroughly disliked. But they are accepted and obeyed by those who have sufficient intelligence and reasoning power to recognize the need for them. There are, however, always cranks who are against everything. They oppose all innovations, ‘what was good enough for granddad is good enough for me’, ‘back to nature’, and so forth. To those people it can be said that nature designed our milk to be consumed by calves and provided for them an excellent system of distribution free from the risk of contamination, which is cheap, labour saving and efficient.

Under a dictatorship or police state, legislation is easy. The new law is published and an army of officials, police, commissars and inspectors pro- ceed to enforce it. They are probably already fully occupied in enforcing other laws and they can never apprehend all offenders. The result is the very severe punishment of the unfortunates who are caught and a widespread evasion by others.

In this country the introduction of new legislation follows a logical sequence. First there is the creation of the public demand, then the publication of the preliminary draft followed by a long period of discussion and amendment, and concluding with the submission of the final draft to Parliament for its approval, with probably quite a long warning before it comes into force.

Under the Food and Drugs Act-under which most of the dairy regulations are made-all interested parties have to be consulted, producers, distributors, administration, local authority, the whole vast area of those who are concerned with the regulations. There may be long delays in the

making of various regulations, and this sometimes causes some despondency. But I think you will agree that the time and trouble spent are well worth while because when, finally, the regulations are made, they are generally observed. There are indeed exceptions, and so there have to be inspec- tors to chivvy those who do not fall into line.

Often you will find that the good practice of today becomes the regulation of tomorrow. Take the case of pasteurized milk. Pasteurization was originally practised on a commercial scale in the early twenties. Then came the Milk Designations Regulations of 1923 approving a certain method (at that time it was long time holding at a low temperature). In the 1930’s flash pasteurizing was practised, and was approved for financial allow- ances by the Ministry of Food, and 1939 and 1940 saw the advent of H.T.S.T. pasteurization, legalized in 1941. The regulations brought into force other good practices: the bottling of all designated milks, overlapping caps and the requirement that milk had to be filled at the place where it was pasteurized.

In other countries the regulations are sometimes set out in great detail, defining precisely what must be done. In this country, they are less specific: ‘there shall be adequate ventilation’, but what is considered adequate is not defined. I t is left to the good sense of the licensing authority or the registration authority to have regard to the circumstances in each particular case.

In this country the use of compulsion in the milk industry is very seldom necessary. There are few countries in the world in which milk legislation is so generally obeyed, or in which the prosecution of the trader is so seldom necessary. That does not mean to say that everything is perfect. I would like to refer, as you would wish me to do, to the subject of the dirty milk bottle-the milk bottle with the foreign object in it. We know that the Milk and Dairies Regulations state that the bottle, immediately before being filled, shall be in a state of thorough cleanliness. No excuses are allowed or permitted whatsoever. I f you sell milk in a bottle which is not in that state, you are a criminal, irrespective of the precautions that you may have taken.

I have looked up some cases about dirty milk

Journal of the Society of Dciiry Technology, Vol. 14, No. 3, 1961 159

bottles or foreign objects which have gone to the High Court on appeal. In 1954, there was a case from North Wales where Lord Chief Justice Goddard giving judgment said ‘They (the local authority) can use a certain amount of common sense. Here is a bottle that has been through every form of treatment, and there is no possibility of harm. What harm has been done?’ In that case, the bottle had spots or specks of sand or something analogous on the inside which, when the bottle was wet, could not be seen, but showed when milk was put in. Lord Chief Justice Goddard said ‘It is important to impress on dairymen that they must see to the cleanliness of their bottles, though in this case no harm had been done and it was a case in which the Justices might very well have given an absolute discharge or certainly a conditional discharge’. In another case in 1951 a piece of razor blade packet was i n a milk bottle. Lord Chief Justice Goddard commented ‘Why it was found necessary to prosecute for what was obviously a small accident that would cause no harm to anyone 1 fail to understand. Still less can I understand why the magistrates thought it necessary to impose a fine of 25.’ The dairyman’s appeal was allowed.

In 1957 in a case in West Wales, Lord Chief Justice Goddard dismissing the appeal by the County Council against the magistrates’ refusal to convict a dairyman whose school milk bottle contained an aluminium cap, said ‘Therefore it cannot be said that the mere fact that there is a foreign body in the milk bottle creates the offence to which there can be no answer.’ He went on again to give a warning to the dairy trade.

I want to put a question to you which I hope you will t ry to answer. In due course, the Milk and Dairies Regulations will have to be reviewed, as they werc quite recently. I expect the dairy trade will have some comments to make about the alleged unfairness of this regulation to which there is no defence. I f you were the House of Commons would you alter the regulations, and if so how? If you are not satisfied with the present rules, how do you t h i n k they should be altered? Or, to put it in a more concrete form, do you feel that the processing dairies in this city take all reasonable and practical steps to avoid putting out milk in dirty bottles? If they do, do you think it is necessary to brand them as criminals when they fail? If they do not take adequate precautions, will you, as members of the Society of Dairy Technology, tell me what precautions those dairies should take? I think that is stating the problem fairly.

There is another problem which arises from our present regulations. For many years a dairyman has been able to experiment with different types or methods of heat treatment, flash, H.T.S.T. and so forth. But now, in Specified Areas, the only types of milk you are permitted to sell are one or

other of the designated types. What does a dairy- man do who wants to introduce on a commercial scale a new type of pasteurized milk, for example, milk pasteurized by ultra-high temperature? He wants to have his plant tested out under commercial conditions, sending out milk processed and bottled by his particular methods, and to see how it stands up to the ordinary rough and tumble of distribution in various weathers and conditions.

I do not know what the dairyman is supposed to do in those cases. Do you feel, as I feel, that the Ministry of Food should have power to issue what might be termed experimental licences?

Also, there are some proposals before the Ministry and the trade for a new method of sterilizing milk. The present method is sterilizing in the bottle. The Ministry invites comments from those concerned on the suggestion that you should be able to sterilize in bulk and subsequently fi l l the milk when its temperature is at least 170°F. into a bottle which would then be given an airtight seal. Do you think that is a good idea? Would the finished product be sterilized milk or pasteurized milk? I am not sure.

Another item of interest is the warranty given by milk buyers. The producer gives a warranty to the Board (and the Board passes i t on to you) that the milk is pure, new, clean, sweet and marketable with all its cream. There is an additional warranty in the case of Channel Island Milk. You may remember the case in this city (or the county immediately outside) some two or three years ago, when efforts were made to rely on the warranty. Much to our alarm it was found that the warranty in the Channel Island Premium Contract was a faulty one inasmuch as the dairyman could not use i t against the producer because there was an insufficient link-up owing to the milk’s being sold to the Board and then on to the dairyman. In subsequent contracts, the warranty was amended and we now think it is water-tight.

The warranty on Channel Island milk reminds me of a most satisfying case. During the war, you may remember producers sold their milk to the Milk Marketing Board, and then the Board sold it to the Ministry of Food, and the Ministry of Food sold it to the first-hand buyers. In this particular case, Channel Island Milk was sold to a Tunbridge Wells dairyman who had only one supplier. In those days, if Channel Island mi lk was sold with less than four per cent fat content, the means of enforcing the regulations was for the Ministiy of Food to prosecute the dairyman for overcharging, because he could not charge extra for C.I. milk unless it contained at least four per cent butterfat. The dairyman had purchased the milk from the Ministry of Food early in the morning, bottled and sold it in the same state as he received it to the Inspector. The sample contained less than four per cent fat and so the Ministry prosecuted the

160 Journal of the Society of Dairy Technology, Vol. 14, No. 3, 196I

dairyman. The defence was that the milk had been sold as the Ministry of Food sold it to the dairyman and that he had committed no offence. The dairyman was convicted and fined. The dairyman, on the advice of the N.D.A., then took proceedings against the Ministry of Food for breach of contract. They had sold him C.l. milk that should have contained four per cent fat but was deficient in fat content, and he had been fined. He won and was awarded damages of 40 shillings against the Ministry of Food. If it had been E4,000 it would have been no more satisfying! This case at last persuaded the Ministry to amend the regulations, and we now have a warranty on which you can rely.

1 have already mentioned specification of areas. You must sell designated milk in nearly the whole of England and Wales. One problem arises from the Milk and Dairies Regulations about vehicles out on the round. They require that the milk shall at all times be adequately protected from con- tamination, dust, dirt, etc. What does that mean in relation to dairy vehicles? Has the milk got to go out in totally enclosed vans or can they be totally unenclosed? In 1949, just after the regulations came into force, the Association met the then Sanitary Inspectors’ Association, now the Public Health Officers’ Association, and discussed this matter with them. We agreed a code that seems to work fairly well.

Vehicles transporting sterilized milk do not require protection from the sun but vehicles retailing other types of milk should have a top, some protection, preferably fixed, like a bulkhead, to screen the front of the load from the engine or the elements or in a few cases, the horse. It is considered that there is no need for side or rear curtains unless perhaps the vehicle is petrol driven and is going rather long distances, in which case it would be desirable to have a rear screen to prevent the picking up of dust.

The Food and Drugs Act, 1955, deals with minimum legal standards for milk very thoroughly. Anyone who sells milk does so at his peril, as is clear from the dirty milk bottle problem. The sample of milk shall be presumed, until the contrary is proved by the dairyman, to be not genuine if it contains less than three per cent fat or 8.5 per cent s.n.f. Now that is one of those objec- tionable examples in English law where the accused is guilty unless he can prove that he is innocent. All the inspector has to do is to prove that the milk was under three per cent and you are obliged to prove that it is genuine. The inspector has only to prove that it failed the test, the fact that he purchased it from you, etc. There are certain lines of defence open to every dairyman. The best is the warranty defence. When milk comes from the Board you are given a warranty. If you buy it from the wholesaler when he sells it to you as so many

gallons of ‘milk’, that is also a warranty on which you can rely. It is a warranty that it is milk which can be sold under the description of milk, and that it is genuine. Pleading a warranty is rather compli- cated because within three days of the sample’s being taken by the inspector, you must serve on the sampling authority what is known as a 60-hour notice requiring them to take a corresponding sample in course of delivery to you. You do not have to do that where you are satisfied the milk that is being delivered to you has been obtained from more than one dairy farm.

The other defence is one that is being increasingly used these days, the Section 113 defence. Under that, the person who is accused can counter- summons, if I may use the word, the individual from whom he obtained the milk, stating that the offence complained of was due to the act or default of that other person. A typical case is that of the retailer buying milk from the wholesaler. The retailer says that if there was anything wrong it must have been due to the wholesaler’s fault, and thus brings in the wholesaler and seeks to show that the offence was due to his act or default. I f the prosecution-the Food and Drugs Authorities -are satisfied that the retailer has a good defence under Section 113, the authority can go direct against the wholesaler, short-circuiting the retailer. But sometimes, particularly in the case where bulk milk has been purchased, for example T.T. milk direct from the farm and bottled by the retailer, the prosecution will almost certainly proceed against the retailer and it will be left to the retailer to bring in his supplier. In this case the prosecution would have greater difficulty in showing that the act or the default was that of the supplier. If the retailer succeeds in his defence the supplier will be convicted, but the retailer may also be convicted himself unless he can show that he was in no way negligent, and took adequate steps to prevent the offence. That places on the retailer the obligation periodically to have his milk tested. If a retailer fails to have bottled milk, purchased from a wholesaler, tested now and again, it is difficult for him to provelhat he has taken adequate steps to prevent the commission of the offence.

There are some items of Weights and Measures legislation worth mentioning. At the present time, any instrument or vessel used for measuring, for the purpose of trade, should be stamped by the Weights and Measures Authorities. What about milk churns coming from farms? I n 1948, a dairyman was prosecuted for using an unstamped measure, namely, the churns in which he received supplies from producers. In cross examination, the dairy manager was forced to admit that farmers were ‘shorted’ on the strength of the unofficial gaugings on the churns. Much to our relief the bench dismissed the case, but notice of appeal was given by the Weights and Measures Inspector and

Journal of the Society of Dairy Technology, Vol. 14, No. 3, 1961 161

we feared a certain conviction if it went to the High Court. However, thank goodness, the appeal was not proceeded with. If milk is not weighed in a stamped machine, always be sure to have a stamped measuring drum in the dairy, and do not ‘short’ farmers unless the drum has been used.

Milk bottles, too, are used for measures. You and your colleagues every day fill about 30 million bottles. Fortunately the Board of Trade realizes the absolute impossibility of stamping all the bottles used, although the law requires that they should be. I t is not necessary, because if you give short measure you can quite readily be prosecuted for

failing to sell a pint, or half a pint, as the case may be. Again, I issue a note of warning that a retailer buying bottled milk from a wholesaler or Farm Bottled from the producer, may feel that he would escape penalty if such bottle contained short measure. For him to be sure, he has to show the court that he has exercised all due diligence and therefore from time to time he should have the bottles tested for measure.

REFERENCE

I. Lethem, W. A. (1957), J . Sor. Dairy Tech.. 10. (4). 180.

DISCUSSION

Mr. F. C. Kingscote opened the discussion,by asking Mr P. O’Neill about short measure in cream containers. Mr. O’Neill said the case that usually occurred was when a Weights and Measures’ Inspector tested a cream carton with water and found it would not hold the number of fluid ounces marked upon it. It did seem that at one time some carton manufac- turers had failed to exercise the care in manufacture that could be expected of them.

The next question concerned milk so badly infected with Brucelki nborrrts that the local M.O.H. had served a notice on the dairyman requiring it to be pasteurized before sale to the public. In reply, Mr. O’Neill said he had had no hesitation in saying that that milk was unmarketable. If, to make it marketable, the dairyman had to have it pasteurized and spend money on transporting it to someone who would pasteurize it for him or exchanging a corresponding gallonage with him, then a claim could be made against the M.M.B. (from whom the milk was purchased) to cover these added costs.

Could milk be stored in vehicles overnight? Mr. O’Neill considered that if the dairyman were leaving his milk in the vehicle for a short period before making his delivery-1-2 hours-that would not be a breach of the Milk and Dairies Regulations. If , on the other hand, he were leaving his milk in the vehicle for many hours, perhaps on thundery nights, then that would be clearly a breach of the regulations. Possibly the crux was this: was the milk adversely affected?

Mr. O’Neill also stated that proceedings might be taken

against a dairy hand who failed thoroughly to wash the bottles, Early in March, in East Durham, a large dairy had several prosecutions for selling milk not of the quality and substance demanded. In that case. the process foreman had overslept and the pipe lines had not been washed through in the ordinary way. Milk was put through and the first milk off was bottled. It contained concentrated doses of some form of detergent or some analogous substance. The dairy counter-summonsed the foreman. The proceedings against the dairy were dismissed but the foreman was fined €20. This was a most interesting case, and he was arranging to give publicity to it because it might be of use on a future occasion.

What were the rules or regulations about the sale of skimmed milk? As far as the Food and Drugs Act, and the Milk and Dairies Regulations, were concerned, it was permitted to sell skimmed milk, but care must be taken to see that the container was labelled ‘skim milk’ or ‘separated milk’ in large and legible letters. As far as price control was concerned, there was none. He had been told that in London recently a person had purchased a pint and was charged 9d. for it-ven more than for fullcream milk!

Even in a specified area raw skimmed milk could be sold. I t need not be pasteurized. The Ministry now had the power to enforce pasteurization and would probably soon bring in regulations to require that separated milk sold for human consumption must be pasteurized, whether or not the sale took place in a specified area.