AE Staley Mfg. Co. v. Secretary of Agriculture

• Decision Date: 12 June 1941
• Docket Number: No. 7470.,7470.
• Citation: 120 F.2d 258
• Parties: A. E. STALEY MFG. CO. v. SECRETARY OF AGRICULTURE et al.
• Court: U.S. Court of Appeals — Seventh Circuit

120 F.2d 258 (1941)

A. E. STALEY MFG. CO. v. SECRETARY OF AGRICULTURE et al.

No. 7470.

Circuit Court of Appeals, Seventh Circuit.

May 22, 1941.

As Amended on Denial of Rehearing June 12, 1941.

Charles C. LeForgee and Carl R. Miller, both of Decatur, Ill., for petitioner.

Martin G. White and William W. Barron, both of Washington, D. C., for respondents.

Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

Petitioner seeks to set aside an order of the Secretary of Agriculture promulgating a regulation fixing and establishing a definition and standard of identity for sweetened condensed milk, pursuant to § 701(f) (1) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 371(f) (1). The Federal Security Administrator was joined with the Secretary of Agriculture as a respondent, because the functions of the Secretary under the Act had been transferred to the Administrator under Reorganization Plan No. IV, 5 U.S.C.A. following section 133t, 5 Fed.Reg. 2421, 1940, promulgated under the Reorganization Act of 1939, 5 U. S.C.A. § 133 et seq.

This proceeding was instituted by "notice of public hearing" filed in conformity with subsection (e) of § 701 of the Act, § 701, 52 Stat. 1055, 21 U.S.C.A. § 371(e). The notice fixed the time for the purpose of holding a public hearing precedent to the promulgation of a regulation establishing a definition and standard of identity for sweetened condensed milk.

From the testimony of expert chemist witnesses it appears that a saccharine is used as a preservative and sweetening agent used by manufacturers of sweetened condensed milk for retail trade and that a mixture of sucrose and dextrose has been used to some extent for bulk or wholesale trade. It also appears that the adaptability of any particular saccharine ingredient for use in making sweetened condensed milk involves its reaction under the process and the results obtained, and that viscosity, crystallization, taste, solubility, thickness, and color must be considered.

Petitioner appeared at the hearing and offered evidence to the effect that corn syrup is a suitable sweetening ingredient in sweetened condensed milk; that from a nutritional standpoint, mixtures of sweet milk and sugars, especially sucrose, levulose, lactose and commercial glucose, commonly known as corn syrup, are physiologically essentially equivalent, interchangeable, and equal in value, and might be substituted one for the other; that corn syrup has about the same physiological effect on consumers as other sugars; that a definition of sugar restricted to mean only sucrose, in sweetened condensed milk, would be an injustice to the consumer and that a reasonable definition and standard for the best interest of consumers should read in effect "a mixture of sweet milk and sucrose, dextrose, levulose or any other digestible sugars."

There is no evidence in the record of a prior commercial use of corn syrup in the manufacture of sweetened condensed milk.

On June 28, 1940, upon consideration of the evidence received at the hearing, the Secretary of Agriculture made his findings of fact and stated his conclusion. He found that the liquid or semi-liquid food prepared by evaporating part of the moisture from a mixture of the sweet milk of cows and a saccharine ingredient is commonly known as sweetened condensed milk and that the saccharine ingredient in sweetened condensed milk is refined sugar (sucrose) or any mixture of refined sugar (sucrose) and refined corn sugar (dextrose). Based upon those findings he issued an order promulgating the regulation fixing and establishing the definition now involved, the pertinent portion thereof reading as follows: "Sweetened Condensed Milk is the liquid or semi-liquid food made by evaporating a mixture of sweet milk and refined sugar (sucrose) or any combination of refined sugar (sucrose) and refined corn sugar (dextrose)."

Petitioner now contends that the findings are not supported by substantial evidence, that the Secretary of Agriculture failed to make a finding that corn syrup (glucose) is a saccharine ingredient of sweetened condensed milk, and that he did not include corn syrup in the regulation promulgated.

At the outset we are met with respondents' contention that the petition should be dismissed for lack of jurisdiction over the subject matter. They insist we should not listen to a party who complains of a grievance which is not his. Interstate Commerce Comm. v. Chicago, R. I. & Pacific R. Co., 218 U.S. 88, 109, 30 S.Ct. 651, 54 L. Ed. 946. On the other hand, petitioner insists that this case presents an actual controversy, and that it is a "person who will be adversely affected by such order."

In support of its contention petitioner's counsel asserts that this case involves a real and substantial controversy admitting a specific relief through a decree of conclusive character and it is a person who will be adversely affected by the order. He calls our attention to § 701(f) (1) of the Federal Food, Drug, and Cosmetic Act defining our jurisdiction to review the Secretary's order, which reads thus: "In a case of actual controversy as to the validity of any order under subsection (e), any person who will be adversely affected by such order if placed in effect may * * * file a petition with the Circuit Court of Appeals * * * for a judicial review of such order." The argument continues: "The whole thought behind the phrase `any person who will be adversely affected,'" is that it was carefully designed and constructed to allow the orders of the Secretary to be contested by those not only adversely affected at the time and date of the order's promulgation, but also those who in the future "will be" adversely affected and concludes "petitioner's interests are now and will in the future certainly be adversely affected," and "petitioner has suffered and will continue to suffer a direct injury in being deprived of a part of its right to engage in interstate commerce."

Petitioner is not engaged in the sale of sweetened condensed milk, but is engaged in the manufacture and sale of corn syrup. In its petition it alleges that the effect of the order is adverse to its interests and will prevent the sale of its corn syrup to the condensed milk industry for use as a saccharine ingredient in sweetened condensed milk.

In support of the contention that this court lacks jurisdiction, respondents rely upon the cases set forth in the footnote.^* It is unnecessary to review these cases. It will be enough to say that we have considered them and believe they are not in point. We think the record does present an actual controversy as to the validity of the...