Federation of Homemakers v. Butz, 71-1611.

• Decision Date: 18 August 1972
• Docket Number: No. 71-1611.,71-1611.
• Citation: 466 F.2d 462
• Parties: FEDERATION OF HOMEMAKERS v. Earl L. BUTZ et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

466 F.2d 462 (1972)

FEDERATION OF HOMEMAKERS v. Earl L. BUTZ et al., Appellants.

No. 71-1611.

United States Court of Appeals, District of Columbia Circuit.

Argued June 6, 1972.

Decided August 18, 1972.

Mr. Michael Kimmel, Atty., Dept. of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, and Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Alan S. Rosenthal, Atty., Dept. of Justice, was on the brief, for appellants.

Mr. Edward Berlin, Washington, D. C., for appellee.

Mr. H. Templeton Brown, Chicago, Ill., filed a brief on behalf of the American Meat Institute as amicus curiae urging reversal.

Before Mr. Justice CLARK^* of the Supreme Court of the United States, and LEVENTHAL and ROBB, Circuit Judges.

ROBB, Circuit Judge:

The appellee, Federation of Homemakers, brought this action in the district court to challenge a regulation promulgated by the Secretary of Agriculture, 9 C.F.R. § 319.180. The regulation, prescribing the labeling to be employed on certain sausage products, permits frankfurters to be labeled "All Meat", "All Beef", "All Pork", or "All species"¹ as the case may be, although they contain, in addition to meat, 10 percent water and 5 percent other ingredients, including corn syrup, spice flavoring and curing additives. At the same time the regulation prohibits the use of the "All Meat" label on frankfurters containing binders and extenders,² such as dried milk, cereal or meat by-products aggregating not more than 3½ percent of the ingredients of the frankfurters.

On cross motions for summary judgment the district court granted the plaintiff's motion, held the regulation invalid, and permanently enjoined the Secretary from enforcing the labeling policy which it embodied.³

The Secretary of Agriculture under the Meat Inspection Act of 1967, 21 U. S.C. §§ 601 et seq., may prescribe the labeling of meat or meat food products⁴ in order to avoid the use of a label which would be false or misleading to the consumer. 21 U.S.C. § 607(d), (e). Pursuant to this authority, the Secretary promulgated the challenged regulation 9 C.F.R. § 319.180. That regulation establishes, among other things, standards governing the use of the "All Meat" label on frankfurters and other cooked or smoked sausage products.⁵ For purposes of this case the relevant parts of the regulation can be summarized as follows: Sausage products labeled "All Meat" may contain, in addition to meat, added water, corn syrup, salt, spices, and curing agents in designated quantities. 9 C.F.R. §§ 318.7, 319.180. The non-meat ingredients in "All Meat" sausages constitute approximately 15 percent of the finished product. Frankfurters which cannot be labeled "All Meat" differ from the "All Meat" variety in that they contain binders and extenders⁶ such as dried milk, cereal, or meat by-products. These added ingredients cannot constitute in the aggregate more than 3½ percent of the total ingredients of the frankfurters. 9 C.F.R. § 319.180. Thus, the only difference between "All Meat" frankfurters and other frankfurters is the existence of up to 3½ percent binders and extenders in the latter; in all other respects the two products are subject to identical standards of composition under the applicable regulations.

The question presented here is whether the label "All Meat", applied to a product containing 85 percent meat, and employed to distinguish such products from those containing 3½ percent binders and extenders and 81½ percent meat, is false or misleading under 21 U.S.C. § 607(d), which provides that:

No article subject to this subchapter shall be sold or offered for sale by any person, firm, or corporation, in commerce, under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the Secretary are permitted.

If the "All Meat" label is false or misleading, the challenged regulation must be invalidated, for the Secretary's action in promulgating such a regulation would be in excess of his authority and "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A); see Houston v. St. Louis Independent Packing Co., 249 U.S. 479, 483, 39 S.Ct. 332, 63 L.Ed. 717 (1919).

It is indisputable that the label "All Meat" as employed in this case is inaccurate. The words used are clear and unequivocal, and they import a description which cannot be attached to a product which is "Part Meat" or "All Meat, Water, Condiments, and Curing Agents". The fact is that frankfurters labeled "All Meat" are simply not all meat.

The Secretary points out, and it is conceded by the Federation, that because of technical limitations no frankfurter can contain more than 85 percent meat. Additional ingredients, such as condiments and water, are essential to supply the properties of taste and texture that are common to frankfurters and without which they would not be recognized as frankfurters. In other words, the Secretary says that by definition a frankfurter is a product containing not more than 85 percent meat. From this premise the Secretary argues that he reasonably determined that the term "all meat frankfurter" is not misleading when applied to a product having all the meat a frankfurter can technically contain.

If frankfurters containing 85 percent meat were the only kind known to man the Secretary's argument might be persuasive, particularly to one familiar with the niceties of frankfurter composition and production. Our difficulty is that there are other frankfurters, specifically those containing 81½ percent meat and 3½ percent binders and extenders; and the regulation forbids the use of the "All Meat" label on such frankfurters. We are thus confronted with the question whether there is a rational basis for the distinction in the labels that may be applied to the two types of frankfurters. If a frankfurter containing 85 percent meat may be labeled all meat, then why must a frankfurter containing 81½ percent meat be denied that label? The Secretary answers in his brief (pp. 10-11) that ". . . the `all meat' label affirmatively has assisted the consumer in rapidly distinguishing such a frankfurter the 85 percent meat frankfurter from those which contain cereal, milk products or other ingredients which are neither meat nor processing agents essential to the manufacture of what is commonly accepted to be a frankfurter." We are not persuaded by the Secretary's argument.

The record discloses that in 1955 about one-third of the total frankfurter production in this country was of the "All Meat" type, the remaining two-thirds consisting of sausage with binders or extenders added. As of 1970, however, nearly 70 percent of the total sausage production was of the "All Meat" type. We think it plain from this that "All Meat" frankfurters are preferred by consumers. The "All Meat" label is therefore an indication that a frankfurter bearing it occupies a preferred status, or is at least considered to be in some way superior to a frankfurter not so labeled. The Secretary says that the element of superiority is the absence of extenders or binders in the "All Meat" frankfurter, and that the distinction is made plain by the ...