COMMITTEE FOR ACCURATE L. & MARKETING v. Brownback
| Citation | 665 F. Supp. 880 |
| Decision Date | 08 July 1987 |
| Docket Number | No. 86-4296-R.,86-4296-R. |
| Parties | COMMITTEE FOR ACCURATE LABELING AND MARKETING, an Illinois not-for-profit corporation, Plaintiff, v. Sam BROWNBACK, Secretary of the Kansas State Board of Agriculture; Archie Hurst, Dairy Commissioner of the State of Kansas; and the Kansas State Board of Agriculture, Defendants. |
| Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
Donald Patterson, Michael K. Seck, Fisher, Patterson, Sayler & Smith, Topeka, Kan., George M. Burditt, Alan I. Becker, Burditt, Bowles & Radzius, Ltd., Chicago, Ill., Richard L. Frank, Olsson & Frank, P.C., Washington, D.C., for plaintiff.
Kenneth M. Wilke, Sp. Asst. Atty. Gen., Kansas State Bd. of Agr., Topeka, Kan., for defendants.
This is an action brought by the Committee for Accurate Labeling and Marketing (CALM), a trade association of food manufacturers, suppliers and customers, challenging the constitutionality of the Kansas Artificial Dairy Products Act, K.S.A. 65-761 et seq. CALM seeks both declaratory and injunctive relief. They contend that the Kansas law violates the Supremacy Clause, the Commerce Clause and the Fourteenth Amendment's Equal Protection Clause of the United States Constitution. The court has held a trial on this matter and is now prepared to issue the following findings of fact and narrative conclusions of law.
1. Plaintiff CALM is a trade association of food manufacturers, suppliers and customers.
2. Defendant Sam Brownback is the Secretary of the Kansas State Board of Agriculture. Defendant Archie Hurst is the Dairy Commissioner of the State of Kansas.
3. In 1985, the Kansas legislature enacted the Kansas Artificial Dairy Products Act (KADPA). K.S.A. 65-761 et seq. The stated intent of the KADPA was to "protect the consumers of this state from confusion, fraud and deception, to prohibit practices inimical to the general welfare, and to promote the orderly and fair marketing of dairy products." K.S.A. 65-761.
4. Under the KADPA, an artificial dairy product is defined as follows:
Any food which by its composition, intended use, sensory qualities, physical properties, package or label description purports to resemble or imitate any dairy product, but does not include: (1) Any distinctive proprietary food compound not readily mistaken for a dairy product, which is customarily prepared and designed for medicinal or special dietary use and predominantly so labeled; or (2) any dairy product flavored with chocolate or cocoa or enriched with vitamins when the nonmilk fats or oils contained in the product do not exceed the amount of cocoa fat naturally present in the chocolate or cocoa used, and the food oil, not in excess of .01% of the weight of the finished product, is used as a carrier of the vitamins.
5. The KADPA makes it unlawful for any person, directly or indirectly, to knowingly manufacture, sell or exchange an artificial dairy product which does not adhere to its labeling requirements. K.S.A. 65-763.
6. Artificial dairy products are to be labeled as follows:
7. The KADPA exempts the following products from its provisions: pizza, dry coffee whiteners, liquid coffee whiteners, dips, dressings, whipped topping and margarine or margarine-type products. K.S.A. 65-768.
8. The Secretary of the Kansas State Board of Agriculture is charged with the administration and enforcement of the KADPA. K.S.A. 65-765 and 65-767. The Secretary has delegated the administration and enforcement of the KADPA to the Dairy Commissioner.
9. The labeling of all food products shipped in interstate commerce is regulated generally by the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., and its implementing regulations promulgated by the Food and Drug Administration (FDA), 21 C.F.R. § Part 100, et seq. A food product is required by the FDCA to bear its "common or usual name ... if any there be." 21 U.S.C. § 343(i). The FDCA specifically prohibits misbranded foods. A food product is misbranded if it is sold under the name of any other food, 21 U.S.C. § 343(b), or if it purports to be a food for which a standard of identity has been prescribed by regulation and it does not conform to that standard, 21 U.S.C. § 343(g).
10. The FDCA further provides that a food which is an imitation of another food product is misbranded "unless the label bears, in type of uniform size and prominence, the word `imitation' and, immediately thereafter, the name of the food imitated." 21 U.S.C. § 343(c). The FDCA does not, however, define "imitation." In 1973, the FDA promulgated a regulation defining imitation food as food which "is a substitute for and resembles another food but is nutritionally inferior to that food." 21 C.F.R. § 101.3(e). Nutritional inferiority is determined by comparing percentages of "essential nutrients" in the substitute food to those in the food for which it substitutes. 21 C.F.R. § 101.3(e)(4). The essential nutrients are protein and the nineteen vitamins and minerals for which the federal government has established recommended daily allowances. Id., § 101.9. Basically, if the substitute food contains less of any essential nutrient present to a measurable degree in the food substituted for, the substance must be labeled with the word "imitation." Thus, a nutritionally equivalent or superior substitute food would be misbranded under federal law if it was labeled with the term "imitation." There is one exception to this general rule, but it has no application to the instant case. See 21 C.F.R. § 101.3(e)(4)(iii). Such foods must be identified by an appropriate common or usual name or, if none exists, a descriptive term. 21 C.F.R. § 101.3(e).
11. The promulgation of the regulations concerning "imitation" food products came after substantial debate and consideration. The FDA had two objectives in passing these regulations: to inform the public of the "actual characteristics and properties of a new food product," and to encourage manufacturers to fortify their substitute food products to the level of nutritional equivalence. The FDA recognized that the addition of the word "imitation" to a food product's label was derogatory and connoted inferiority.
12. The members of CALM manufacture and distribute various food products, some of which are substitutes for standardized natural cheese, processed cheese, or cheese. The principal ingredients in the substitute products generally are casein, a protein derived from milk, and vegetable oil. The substitute products are "artificial dairy products" as defined under the KADPA.
13. The substitute products are lower in price, cholesterol and saturated fats than their standardized counterparts.
14. The members of CALM sell substantial quantities of the substitute products in commerce which are ultimately sold through retail outlets in Kansas.
15. Many of the substitute products manufactured by the members of CALM are fortified with nutrients so as to make them nutritionally equivalent or superior to their standardized counterparts. Substitute products which are not nutritionally equivalent are labeled "imitation" pursuant to the requirements of the aforementioned federal regulations.
16. The addition of the words "artificial dairy product" to the label of a substitute food product is both misleading and derogatory. The requirements of the KADPA will certainly result in lost sales of substitute food products in Kansas. Consumers view the term "artificial" to be functionally equivalent to the term "imitation."
17. The incentive of a substitute food product manufacturer to fortify his products will be substantially diminished by the requirements of the KADPA since he will be forced to include the derogatory term "artificial" to his package label even if the substitute product is the nutritionally equivalent of its standardized counterpart.
CALM contends first that the labeling requirements of the KADPA are preempted by the federal law under the Supremacy Clause of the United States Constitution. The defendants assert that the KADPA is not in conflict with federal law and does not stand as an obstacle to the objectives of the FDCA.
The United States Supreme Court recently interpreted the doctrine of preemption in Hillsborough...
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