Chocolate Mfrs. Ass'n of U.S. v. Block

• Decision Date: 27 February 1985
• Docket Number: No. 83-2053,83-2053
• Citation: 755 F.2d 1098
• Parties: CHOCOLATE MANUFACTURERS ASSOCIATION OF the UNITED STATES, Appellant, v. John R. BLOCK, Sec. U.S. Dept. of Agriculture; Samuel J. Cornelius, Administrator, Food and Nutrition Service and U.S. Department of Agriculture, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1098

755 F.2d 1098

CHOCOLATE MANUFACTURERS ASSOCIATION OF the UNITED STATES, Appellant, v. John R. BLOCK, Sec. U.S. Dept. of Agriculture; Samuel J.

Cornelius, Administrator, Food and Nutrition

Service and U.S. Department of

Agriculture, Appellees.

No. 83-2053.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1984.

Decided Feb. 27, 1985.

Peter Barton Hutt, Washington, D.C. (Richard A. Friedman, Laird Hart, Covington & Burling, Washington, D.C., Chris Beatley, Alexandria, Va., on brief), for appellant.

Gregory S. Walden, Dept. of Justice, Washington, D.C. (John B. Koch, Dept. of Agriculture; Richard K. Willard, Acting Asst. Atty. Gen., Carolyn B. Kuhl, Deputy Asst. Atty. Gen., Washington, D.C.; Elsie L. Munsell, U.S. Atty., Alexandria, Va.; Anthony J. Steinmeyer, Dept. of Justice, Washington, D.C., on brief), for appellees.

Before RUSSELL and SPROUSE, Circuit Judges, and HARGROVE, United States District Judge for the District of Maryland, sitting by designation.

SPROUSE, Circuit Judge:

Chocolate Manufacturers Association (CMA) appeals from the decision of the district court denying it relief from a rule promulgated by the Food and Nutrition Service ^S of the United States Department of Agriculture (USDA or Department). CMA protests that part of the rule that prohibits the use of chocolate flavored milk ¹ in the federally funded Special Supplemental Food Program for Women, Infants and Children (WIC Program) ². Holding that the Department's proposed rulemaking did not provide adequate notice that the elimination of flavored milk would be considered in the rulemaking procedure, we reverse.

I

Since 1946 USDA has administered a variety of child nutrition programs under the National School Lunch Act ³ and the Child Nutrition Act of 1966. ⁴ Besides the WIC Program, these programs are the National School Lunch Program ⁵, the Special Milk Program for Children ⁶, the School Breakfast Program ⁷, the Summer Food Service Program ⁸, and the Child Care Food Program. ⁹

The WIC Program was established by Congress in 1972 to assist pregnant, postpartum, and breastfeeding women, infants and young children from families with inadequate income whose physical and mental health is in danger because of inadequate nutrition or health care. ¹⁰ Under the program, the Department designs food packages reflecting the different nutritional needs of women, infants, and children and provides cash grants to state or local agenices, which distribute cash or vouchers to qualifying individuals in accordance with Departmental regulations as to the type and quantity of food.

In 1975 Congress revised and extended the WIC Program through fiscal year 1978 ¹¹ and, for the first time, defined the "supplemental foods" which the program was established to provide. The term

shall mean those foods containing nutrients known to be lacking in the diets of populations at nutritional risk and, in particular, those foods and food products containing high-quality protein, iron, calcium, vitamin A, and vitamin C.... The contents of the food package shall be made available in such a manner as to provide flexibility, taking into account medical and nutritional objectives and cultural eating patterns.

Pub.L. No. 94-105, Sec. 17(g)(3), 89 Stat. 511, 520 (1975) (codified at 42 U.S.C. Sec. 1786(g)(3) (1976)) (replaced by 42 U.S.C. Sec. 1786(b)(14) (1982)).

Pursuant to this statutory definition, the Department promulgated new regulations specifying the contents of WIC Program food packages. These regulations specified that flavored milk was an acceptable substitute for fluid whole milk in the food packages for women and children, but not infants. ¹² This regulation formalized the Department's practice of permitting the substitution of flavored milk, a practice observed in the WIC Program since its inception in 1973 as well as in several of the other food programs administered by the Department.

In 1978 Congress, in extending the WIC Program through fiscal year 1982, redefined the term "supplemental foods" to mean:

those foods containing nutrients determined by nutritional research to be lacking in the diets of pregnant, breastfeeding, and postpartum women, infants, and children, as prescribed by the Secretary. State agencies may, with the approval of the Secretary, substitute different foods providing the nutritional equivalent of foods prescribed by the Secretary, to allow for different cultural eating patterns.

Pub.L. No. 95-627, Sec. 17(b)(14), 92 Stat. 3603, 3613 (1978) (codified at 42 U.S.C. Sec. 1786(b)(14) (1982)). Congress stated further:

The Secretary shall prescribe by regulation supplemental foods to be made available in the program under this section. To the degree possible, the Secretary shall assure that the fat, sugar, and salt content of the prescribed foods is appropriate.

Id. at Sec. 17(f)(12), 92 Stat. at 3616 (codified at 42 U.S.C. Sec. 1786(f)(12) (1982)). To comply with this statutory redefinition, the Department moved to redraft its regulations specifying the WIC Program food packages. In doing so it relied upon information collected during an extensive investigative effort which had begun in 1977. In June 1977 the Department held public hearings in seven cities and elicited testimony on the structure and administration of the WIC Program. The Department invited many interested and informed parties to attend these hearings--the governor and chief health officer of every state, the House Education and Labor Committee, the Senate Select Committee on Nutrition Evaluation, state WIC coordinators, industry representatives, and professional and advocacy groups. In addition to information gathered at the public hearings, the Department received periodic reports from the National Advisory Council on Maternal, Infant, and Fetal Nutrition, as well as recommendations from a Food Package Advisory Panel convened in October 1978.

Using this information as well as its own research as a basis, the Department in November 1979 published for comment the proposed rule at issue in this case. 44 Fed.Reg. 69254 (1979). Along with the proposed rule, the Department published a preamble discussing the general purpose of the rule and acknowledging the congressional directive that the Department design food packages containing the requisite nutritional value and appropriate levels of fat, sugar, and salt. Id. at 69254. Discussing the issue of sugar at length, it noted, for example, that continued inclusion of high sugar cereals may be "contrary to nutrition education principles and may lead to unsound eating practices." Id. at 69263. It also noted that high sugar foods are more expensive than foods with lower sugar content, and that allowing them would be "inconsistent with the goal of teaching participants economical food buying patterns." Id.

The rule proposed a maximum sugar content specifically for authorized cereals. The preamble also contained a discussion of the sugar content in juice, but the Department did not propose to reduce the allowable amount of sugar in juice because of technical problems involved in any reduction. Neither the rule nor the preamble discussed sugar in relation to flavoring in milk. Under the proposed rule, the food packages for women and children without special dietary needs included milk that could be "flavored or unflavored." Id.

The notice allowed sixty days for comment and specifically invited comment on the entire scope of the proposed rules: "The public is invited to submit written comments in favor of or in objection to the proposed regulations or to make recommendations for alternatives not considered in the proposed regulations." Id. at 69255. Over 1,000 comments were received from state and local agencies, congressional offices, interest groups, and WIC Program participants and others. Seventy-eight commenters, mostly local WIC administrators, recommended that the agency delete flavored milk from the list of approved supplemental foods.

In promulgating the final rule, the Department, responding to these public comments, deleted flavored milk from the list, explaining In the previous regulations, women and children were allowed to receive flavored or unflavored milk. No change in this provision was proposed by the Department. However, 78 commenters requested the deletion of flavored milk from the food packages since flavored milk has a higher sugar content than unflavored milk. They indicated that providing flavored milk contradicts nutrition education and the Department's proposal to limit sugar in the food packages. Furthermore, flavored milk is more expensive than unflavored milk. The Department agrees with these concerns. There are significant differences in the sugar content of fluid whole milk and low fat chocolate milk. Fluid whole milk supplies 12.0 grams of carbohydrate per cup compared to 27.3 grams of carbohydrate per cup provided by low fat chocolate milk. If we assume that the major portion of carbohydrate in milk is in the form of simple sugar, fluid whole milk contains 4.9% sugar contrasted with 10.9% sugar in low fat chocolate milk. Therefore, to reinforce nutrition education, for consistency with the Department's philosophy about sugar in the food packages, and to maintain food package costs at economic levels, the Department is deleting flavored milk from the food packages for women and children. Although the deletion of flavored milk was not proposed, the comments and the Department's policy on sugar validate this change.

45 Fed.Reg. 74854, 74865-66 (1980).

After the final rule was issued, CMA petitioned the Department to reopen the rulemaking to allow it to comment, maintaining that it had been misled into believing that the deletion of flavored milk would not be considered. In a letter to CMA dated November 18, 1981, the Department indicated that it would reopen the issue of flavored milk for "further public comments" and would request "rationale both supporting and...