American Public Health Ass'n v. Butz

• Citation: 511 F.2d 331,167 U.S.App.D.C. 93
• Decision Date: 09 April 1975
• Docket Number: No. 73--1142,73--1142
• Parties: AMERICAN PUBLIC HEALTH ASSOCIATION et al., Appellants, v. Earl BUTZ, Secretary of Department of Agriculture, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 331

511 F.2d 331

167 U.S.App.D.C. 93

AMERICAN PUBLIC HEALTH ASSOCIATION et al., Appellants, v. Earl BUTZ, Secretary of Department of Agriculture, et al.

No. 73--1142.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 22, 1974.

Decided Dec. 19, 1974.

Rehearing En Banc Denied April 9, 1975.

Irvin B. Nathan, Washington, D.C., with whom Simon Lazarus, III, and Charles R. Halpern, Washington, D.C., were on the brief, for appellants.

Richard L. Beizer, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and J. Michael McGarry, III, Asst. U.S. Attys., were on the brief, for appellees. Earl J. Silbert, U.S. Atty., also entered an appearance for appellee.

Before ROBINSON and ROBB, Circuit Judges, and MATTHEWS, ^* Senior District Judge for the United States District Court for the District of Columbia.

ROBB, Circuit Judge:

As plaintiffs in the District Court our appellants alleged in their complaint that the Secretary of Agriculture was violating certain provisions of the Wholesome Meat Act, 21 U.S.C. §§ 601 et seq., and the Wholesome Poultry Products Act, 21 U.S.C. §§ 451 et seq. Specifically, they alleged that the Secretary was wrongfully refusing to affix to meat and poultry products, inspected by the Department of Agriculture, labels containing handling and preparation instructions to protect the consumer against food poisoning caused by salmonellae and other bacteria. The complaint prayed that the Secretary be enjoined 'from affixing the label 'U.S. Passed and Inspected' or 'U.S. Inspected for Wholesomeness' on meat and poultry unless it is accompanied by an adequate explanation to the consumer that the product may contain organisms capable of causing food poisoning or infection which will multiply unless the product is properly handled and cooked, along with proper instructions on how to minimize such risk.' In substance, the plaintiffs claimed that the official inspection labels constituted misbranding. On cross motions for summary judgment the District Court granted the defendants' motion and dismissed the case.

In the Poultry Products Inspection Act, Pub.L.No.85--172 (Aug. 28, 1957), as amended by the Wholesome Poultry Products Act, Pub.L.No.90--492 (Aug. 18, 1968), and the Federal Meat Inspection Act of March 4, 1907, ch. 2907, 34 Stat. 1260, as amended by the Wholesome Meat Act, Pub.L.No.90--201 (Dec. 15, 1967), Congress declared its intent to protect the health and welfare of consumers and to prevent and eliminate burdens on commerce by assuring that meat and poultry products are wholesome and properly labeled. 21 U.S.C. §§ 451, 452, 602. To help achieve these ends, Congress required inspections at packing plants for both meat and poultry and their products. 21 U.S.C. §§ 455, 603--605. In the case of meat, if the item is found to be not adulterated, Congress has further required inspectors appointed by the Secretary of Agriculture to mark, stamp or label the item 'Inspected and passed.' 21 U.S.C. §§ 604, 606. In the case of poultry, if the item is found to be not adulterated, the Secretary is required to affix an official inspection legend on the item or on its container. 21 U.S.C. §§ 453(h)(12), 457(a). Under his statutorily delegated authority to promulgate necessary regulations, 21 U.S.C. §§ 463(b), 607(c), the Secretary has provided markings for poultry and meat products. See 9 C.F.R. § 381.96 (1974) (poultry); 9 C.F.R. §§ 312.2, 312.3 (1974) (meat).

Salmonellae are bacteria found in meats, poultry, eggs and their products. Salmonellosis or 'food poisoning' caused by the ingestion of salmonellae may produce nausea, abdominal cramps, vomiting, high fever, dizziness, headaches, dehydration and diarrhea. Preventive measures against salmonellae are care in cooking and storage of foods, and adequate refrigeration. To prevent cross- contamination from raw material to finished food, utensils, working surfaces and the hands of food preparers should be thoroughly washed. Proper cooking destroys salmonellae.

As alleged in the complaint, and established by the record, 'The inspection procedures now required by the Wholesome Meat Act and the Wholesome Poultry Products Act do not include any investigation to detect the presence of salmonella in meat or poultry, because no such microscopic examination is considered feasible as a routine matter.' The reason for this situation is apparent: a poultry inspector, for example, may conduct post mortem examinations of more than 10,000 birds in one day. Microscopic examination of each bird would obviously be impractical. Recognizing and accepting this fact the appellants do not seek revision of inspection techniques. They argue however that since salmonellae are likely to be present in all meat and poultry the inspection labels used by the Department of Agriculture create a false sense of security in consumers. In terms of the statutes the appellants say the inspection labels are 'false or misleading' so that the meat and poultry to which they are affixed are 'misbranded.' See 21 U.S.C. § 453(h)(1), (12); 21 U.S.C. § 601(n)(1), (12). The remedy, according to the appellants, is the inclusion of preparation and handling instructions on each label.

The appellants presented their case to the Secretary of Agriculture in letters and conferences beginning with a letter on June 28, 1971. In this letter the appellants referred to a report issued by the Department of Agriculture on the salmonellae problem, together with other documentation, and urged the Secretary to require the following label or some reasonable equivalent to be affixed to all raw meat and poultry approved for human consumption:

Caution: Improper handling and inadequate cooking of this product may be hazardous to your health. Despite careful government inspection, some disease-producing organisms may be present. Consult your local health department for information on the safe handling and preparation of this product.

In response the Department by letter of July 21, 1971, expressed its concern with the salmonellae problem and its recognition of the importance of control of salmonellosis. The Department quoted from a report of the National Research Council which stated:

'. . . the problem of controlling salmonellosis in man is greatly complicated because of the widespread distribution of the organisms in the environment and the many ways by which they can reach the host.'

'Recent experience has implicated a variety of processed foods and drugs (e.g., egg products, dry milk, coconut, inactive dry yeast. . . .) in out-breaks of salmonellosis.'

The Department's letter concluded that since 'there are numerous sources of contamination which might contribute to the overall problem' it would be 'unjustified to single out the meat industry and ask that the Department require it to identify its raw products as being hazardous to health. Such an act would have to apply to any and all sources of salmonellae in order to be fairly administered.'

Dissatisfied with the Department's response of July 21 the appellants on July 29, 1971 again wrote to the Secretary requesting that he 'review this situation once again, and in the interests of the consumers' health and safety . . . take prompt action to avoid the continuation of the mis-labeling and misbranding as 'U.S. Inspected' and 'U.S. Inspected for Wholesomeness' (of) contaminated raw meats and poultry.' In response the Department on August 18, 1971, wrote

. . . you appear to disregard the fact that the American consumer knows that raw meat and poultry are not sterile and, if handled improperly, perhaps could cause illness.

The Department's philosophy in this matter is that the salmonella problem can be handled most effectively at the consumer level where all contributing factors converge--where the final preparation of food takes place. The consumer education program which you have advocated would fit in well with this concept and would be instrumental in informing the American public of the proper methods for handling all foods, including meat and poultry, so that any hazard is reduced to a minimal level.

The Department reiterated this position in a letter of October 20, 1971 as follows:

You will recall that we firmly believed that the salmonella problem could be handled most effectively at the consumer level where final food preparation took place. We maintained then, and wish to reemphasize now, that a soundly designed consumer education program is the best manner in which to approach the entire problem of food-borne disease. Such a program would reduce the incidence of mishandling of foods and thereby reduce potential hazards to a minimum.

The Department is actively supporting a number of consumer education programs which are designed with this goal in mind. We would hope you and your respected organization would join with us in this effort.

On December 7, 1971 the appellants renewed their request and proposed a label to this effect:

WARNING: This product may contain bacteria which can cause food-poisoning. Refrigeration and adequate cooking will make it safe to eat. To keep bacteria from spreading to other foods: (1) Do not let other foods touch this uncooked product or the surfaces where it has been placed. (2) After handling, carefully wash your hands and all equipment which touched the raw product.

In a meeting on December 21, 1971 between officials of the Department and representatives of the appellants the Department finally rejected the appellants' proposal and took the position that a consumer education program on the proper way to handle and prepare meat and poultry was the answer to the problem. This lawsuit followed.

The Wholesome Poultry Products Act, 21 U.S.C. §§ 453(h)(1) and (12), provides that an article is 'misbranded'

(1) If its labeling is false or misleading in any particular;

(12) If it fails to bear on its containers, and in the case of nonconsumer packaged carcasses (if the...