Grocery Mfrs. of America, Inc. v. Department of Public Health

• Citation: 379 Mass. 70,393 N.E.2d 881
• Parties: GROCERY MANUFACTURERS OF AMERICA, INC. et al. 1 v. DEPARTMENT OF PUBLIC HEALTH et al. 2
• Decision Date: 28 August 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 881

393 N.E.2d 881

379 Mass. 70

GROCERY MANUFACTURERS OF AMERICA, INC. et al. ¹ v. DEPARTMENT OF PUBLIC HEALTH et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1979.

Decided Aug. 28, 1979.

John J. Curtin, Jr., Boston (Irvin D. Gordon and Janis M. Berry, Boston, with him), for plaintiffs.

S. Stephen Rosenfeld, Asst. Atty. Gen. (Terry Jean Seligmann and Robert Gaines, Asst. Attys. Gen., with him), for defendants.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The plaintiffs, who shall be referred to collectively as the GMA (Grocery Manufacturers of America, Inc.), brought this action under G.L. c. 231A, to challenge the validity of a food labeling regulation adopted in July, 1978, by the Department of Public Health (department). A single justice reported the case to the full court on the pleadings and a statement of agreed facts.

The challenged regulation appears in § 101.19 of the Massachusetts Register under the heading "FOOD, OPEN DATE LABELING" and is set forth in an appendix to this opinion. The basic purpose of the regulation is to require persons who offer a food product for sale in package form to disclose a date on the package to provide the consumer with information about the quality of the product as it may be adversely affected by the passage of time. Disclosure of this type is generally known as "open date labeling." The vendor, or potential vendor, must disclose either of two dates. It may set forth the "last date of use," defined in § 101.19(a)(2) as the "date beyond which the product may not be fit for consumption" when "stored under those conditions recommended for storage of the product on the label." In determining this date, the manufacturer is to consider factors, listed in (a)(2), which may significantly change the product after the date of its packaging. Alternatively, the vendor may disclose a "pull date," defined in § 101.19(a)(5) as "the date after which the product may not be of the quality which the manufacturer represents it to be," determined by the manufacturer on consideration of factors relating to the quality of the product, again on the assumption that the product will be stored as recommended on its label. ³

The GMA advances a multitude of challenges to the regulation. It contends that the department lacked statutory authority to adopt the regulation, and that, even if the department had that authority, the regulation is invalid because the department failed to conform with various procedural requirements. Additionally, the GMA argues on constitutional grounds that (a) the regulation impermissibly intrudes on an area preempted by the Federal government, (b) the regulation improperly burdens interstate commerce, and (c) the regulation denies due process of law because it is void for vagueness and lacks a rational basis for its enactment as a police power measure. We reject all these contentions.

As far back as 1973, the department undertook consideration of the adoption of food labeling regulations, including open date labeling, and held a public hearing on the subject. After receiving numerous comments and criticisms, in the fall of 1976 the department proposed food labeling regulations and held another public hearing. After this hearing, the department requested further information from the GMA itself and from the National Canners Association, among others, concerning (a) the economic impact of the proposed open date labeling regulations for "non-perishable" foods and (b) the nutritive loss or deterioration (such as loss of color, flavor or aroma) in non-perishable foods. In April, 1977, the Public Health Council of the department adopted regulations concerning ingredient labeling, nutrition labeling, and labeling of "organic" foods, but adopted no open date labeling regulations. In May, 1977, the National Canners Association (now the National Food Processors Association) undertook consideration of a voluntary open date program and asked the department to delay action on its regulation. The department received numerous comments on the regulation between November, 1976 and July 26, 1978.

In July, 1978, the Public Health Council of the department provisionally approved an open date regulation, and by July 25, 1978, further comments had been received from several sources. On that date, the Public Health Council approved certain modifications in the regulation it had provisionally approved, and adopted the modified regulation, which was published in the Massachusetts Register on August 31, 1978. ⁴

The parties have filed a statement of agreed facts which we summarize in part. All food manufacturers agree that a food product may not be of that quality which a manufacturer expects of its product at the time of consumption if it is subjected to adverse conditions of temperature, humidity, light, handling, or some combination of these elements. Most food manufacturers have an opinion as to the minimum period during which, under normal conditions, their products will be of the quality which they expect at the time of consumption. Various manufacturers have identified the shelf lives of their products. Most food packages include coded information which identifies the place and date of packaging. Some openly show dates of packaging. Some local supermarket chains and several national companies voluntarily use open dates for some or all of their non-perishable food products, although most manufacturers do not open date their non-perishable products. The National Food Processors Association has undertaken a voluntary open date program for canned goods. There is an indication of substantial consumer interest in open date labeling. Although there are requirements for open date labeling of perishable food products in some other jurisdictions, we are advised that open date labeling is not required for "non-perishable" foods anywhere else in the country.

1. The department's authority to promulgate the regulation. The GMA argues that the department lacked statutory authority to adopt any regulation requiring open date labeling. It contends that G.L. c. 94, § 187, which defines the term "misbranded," cannot be read to authorize a regulation requiring disclosure of "the pull date or the last date of use" of non-perishable food. In short, the GMA contends that misbranding speaks only to active misrepresentations. In support of this view, the GMA argues that the Legislature has enacted affirmative disclosure requirements, containing specific details, in those situations where active representations must be made and that open date labeling is not one of these situations. The GMA further contends that the regulation is invalid because, in particular respects, it is inconsistent with portions of G.L. c. 94, §§ 186-195.

The general principles governing agency authority to issue a regulation are not in substantial dispute. A regulation may be authorized even where it cannot be traced to specific statutory language. See Levy v. Board of Registration & Discipline in Medicine, --- Mass. ---, --- ^A, 392 N.E.2d 1036 (1979); Opinion of the Justices, 368 Mass. 831, 834-835, 333 N.E.2d 388 (1975); Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 494, 295 N.E.2d 876 (1973). "An agency's powers are shaped by its organic statute taken as a whole." Commonwealth v. Cerveny, 373 Mass. 345, --- ^B, 367 N.E.2d 802, 808 (1977). Powers granted include those necessarily or reasonably implied. Opinion of the Justices, supra. Bureau of Old Age Assistance of Natick v. Commissioner of Pub. Welfare, 326 Mass. 121, 124, 93 N.E.2d 267 (1950). An agency, of course, has considerable leeway in interpreting a statute it is charged with enforcing. Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, --- ^C, 364 N.E.2d 1202 (1977). The Legislature may delegate to an agency "the authority under proper statutory guidelines to define more precisely by regulation the nature of an offense." Commonwealth v. Racine, 372 Mass. 631, --- ^D, 363 N.E.2d 500, 503 (1977).

In certain situations, of which this is not one, the Legislature has granted broad agency authority to deal with an entire area of activity. See, e. g., Warner Cable of Mass. Inc. v. Community Antenna Television Comm'n, 372 Mass. 495, 362 N.E.2d 897 (1977) (regulation of cable television throughout Commonwealth); Colella v. State Racing Comm'n,360 Mass. 152, 153-154, 274 N.E.2d 331, 333 (1971) ("full power to prescribe rules, regulations and conditions under which all horse or dog races . . . shall be conducted in the commonwealth"); Universal Mach. Co. v. Alcoholic Beverages Control Comm'n, 301 Mass. 40, 44, 16 N.E.2d 53 (1938) ("comprehensive and exclusive jurisdiction" over businesses engaging in sale of alcoholic beverages). Where no such broad statutory grant exists, closer scrutiny of the authority of the agency is required and has been applied. Commonwealth v. Racine, 372 Mass. 631, 363 N.E.2d 500 (1977) (regulation imposing a fine upheld as furthering goal stated in statute). Commonwealth v. Cerveny, 373 Mass. 345, 367 N.E.2d 802 (1977) (power to require forms to be signed under oath implied from power to subpoena and to administer oaths). Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838 (1952) (power to prohibit sales not granted by authority to regulate conditions under which sales could be made). Commonwealth v. Johnson Wholesale Perfume Co., 304 Mass. 452, 24 N.E.2d 8 (1939) (regulation purporting to add additional requirement to statute, held invalid).

We conclude that the authority granted by G.L. c. 94, § 192, ⁵ to regulate the sale of misbranded food, that is, a food with a label " misleading in any particular" (G.L. c. 94, § 187), includes an omission of fact as well as an express misstatement of fact. The regulation seeks to eliminate the implied representation, which derives from the item's availability for sale, that...