Community Nutrition Institute v. Block

• Decision Date: 05 December 1984
• Docket Number: No. 82-2494,82-2494
• Parties: COMMUNITY NUTRITION INSTITUTE, et al., Appellants, v. John R. BLOCK, Secretary of Agriculture, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 50

749 F.2d 50

242 U.S.App.D.C. 28

COMMUNITY NUTRITION INSTITUTE, et al., Appellants, v. John R. BLOCK, Secretary of Agriculture, et al.

No. 82-2494.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 19, 1983.

Decided Dec. 5, 1984.

Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on brief, for appellants.

Susan M. Chalker, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed) and Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees Block, et al.

Philip C. Olsson, Washington, D.C., with whom Richard L. Frank and Gary Jay Kushner, Washington, D.C., were on brief, for appellees, Western States Meat Ass'n, et al.

Before WILKEY, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made." At issue are regulations promulgated by the Secretary of Agriculture ¹ prescribing labeling requirements for meat products made in part with meat separated from bone by crushing bones and meat and forcing the resulting paste through a sieve. Appellants challenge the regulations on grounds that they permit the sale of misbranded and adulterated food products, in violation of the Federal Meat Inspection Act, 21 U.S.C. Secs. 601-95 (1982), and that they were promulgated in reliance upon scientific studies completed by the agency after the close of the rulemaking record, in violation of the Administrative Procedure Act.

I

Traditional meat processing technology involves cutting meat off the carcass by hand before subjecting it to further processing such as grinding or comminuting. The "meat" so derived consists of

[t]he part of the muscle ... which is skeletal or which is found in the tongue, in the diaphragm, in the heart, or in the esophagus, with or without the accompanying and overlying fat, and the portions of bone, skin, sinew, nerve, and blood vessels which normally accompany the muscle tissue and which are not separated from it in the process of dressing.

9 C.F.R. Sec. 301.2(tt) (1984).

Hand deboning wastes a significant amount of meat which cannot economically be removed from the bones. In the early 1960s the Japanese developed a mechanical deboning process based on the differential ability of comminuted flesh and bone to pass through fine sieves. The process has been used in this country since 1969 for poultry. In 1976 the Department of Agriculture first proposed allowing its use for red meat. In that application of the technique, the majority of the meat is usually removed by hand. The rest of the carcass is then mechanically crushed into a fine paste, which is forced through sieves that capture most of the crushed bone. The resulting product is a paste consisting primarily of skeletal muscle and associated tissue together with no more than 3% bone particles, 98% of which have a maximum size no greater than 0.5mm in their greatest dimension and none of which is larger than 0.85mm in its greatest dimension. See 9 C.F.R. Sec. 319.5(a) (1984). Under the current regulations this product is known as "Mechanically Separated (Species)" ("MS(S)")--for example, Mechanically Separated Beef or Mechanically Separated Pork. Id.

In 1976, the Department of Agriculture proposed regulations which included MS(S)--then known as "Mechanically Deboned Meat" ("MDM")--within the definition of meat and permitted its use as an ingredient in processed meat food products without special labeling or inclusion in the ingredients statement under any name other than that of the species of meat. 41 Fed.Reg. 17,560 (1976). Under those proposed regulations, consumers would have had no way of knowing that a meat food product such as frankfurters contained MDM. Simultaneously with the publication of the proposed regulations, the agency issued a related interim rule, to permit and regulate the production and distribution of MDM pending final rulemaking. 41 Fed.Reg. 17,535 (1976). Community Nutrition Institute and others challenged the interim rule in the District Court, and obtained a preliminary injunction resting in part on the finding that the plaintiffs would probably be able to establish that it had been promulgated in violation of the requirements of the Administrative Procedure Act and that it unlawfully permitted sale of an adulterated and misbranded product. Community Nutrition Institute v. Butz, 420 F.Supp. 751, 754-56 (D.D.C.1976).

Before publication of the proposed and interim regulations, a taste panel had determined that the use of MDM in the proportions allowed by the regulations did not affect the taste of the product. See 41 Fed.Reg. 17,561 (1976). In response to Community Nutrition Institute v. Butz, the Secretary initiated further studies. A select panel of scientists from various government agencies found that nothing in bone or bone particles in the permitted amounts posed a health or safety problem for most people. The panel concluded that there were no health or safety reasons for requiring products containing MDM to bear nutrition labeling, but recommended that they note the presence of MDM in their statement of ingredients, so that those who must stringently restrict calcium intake could avoid them. It also recommended prohibiting the use of MDM in baby and junior foods because of lack of information on the possible danger of mottling of teeth from excessive fluoride intake. See 42 Fed.Reg. 54,439 (1977).

The Secretary subsequently published revised proposed regulations, 42 Fed.Reg. 54,437 (1977), and adopted final regulations, 43 Fed.Reg. 26,416 (1978). These established a standard of identity for the product, renamed "Mechanically Processed (Species) Product" ("MP(S)P"), 9 C.F.R. Sec. 319.5 (1979). They limited the use of MP(S)P to meat food products of a comminuted nature such as frankfurters and luncheon meats, and forbade its use for more than 20% of the meat portion, 9 C.F.R. Sec. 319.6 (1979). They also established labeling requirements: In addition to identifying MP(S)P by name in the ingredients statement, the label was to bear two prominently lettered qualifying phrases next to the finished product name (e.g., frankfurters), 9 C.F.R. Sec. 317.2(j)(13) (1979). The first phrase, "With Mechanically Processed (Species) Product" was required on grounds that MP(S)P was a unique, unexpected ingredient, 43 Fed.Reg. 26,420 (1978). The second qualifying phrase, "Contains Up To --% Powdered Bone," was to advise persons on calcium restricted diets of the increased calcium content, id.

The Pacific Coast Meat Association ("PCMA") petitioned for a revision of these regulations on the ground that they required negative labeling and imposed unrealistic standards, accompanying its petition with an economic analysis of the regulations' impact. The Secretary denied the petition in May 1979, indicating, however, that he was open to a resubmission with compelling evidence on certain specified points, including consumer preference. PCMA resubmitted its petition in June 1979 with some further explanation and response to adverse comments. The Secretary denied the resubmitted petition in September because it contained no new evidence. In February 1981 PCMA, along with the American Meat Institute, again petitioned for amendment of the regulations, this time accompanying their petition with information of the sort the Secretary had referred to in his denial of the 1979 petition, including a market research study regarding consumer preferences and perceptions and a new and more extensive economic analysis. After reviewing the petition and accompanying reports, and developing his own Preliminary Regulatory Impact Analysis, the Secretary published yet another notice of proposed rulemaking, 46 Fed.Reg. 39,274 (1981). Based on consideration of more than 1,600 comments on the proposal, he promulgated the final regulations challenged here, 47 Fed.Reg. 28,214 (1982). These left virtually unchanged the restrictions on product composition and use but modified the labeling requirements. They changed the product name from Mechanically Processed (Species) Product to Mechanically Separated (Species), see 9 C.F.R. Sec. 319.5(a) (1984), eliminated the qualifying phrase indicating the presence of MP(S)P but retained the requirement that MS(S) be listed in the ingredient statement, 9 C.F.R. Sec. 317.2(f)(1) (1984), and replaced the powdered bone content qualifying phrase with calcium content information, see 9 C.F.R. Sec. 317.2(j)(13).

Appellants in this case, the Community Nutrition Institute and three other consumer groups, filed suit in the district court seeking to invalidate the regulations. Though the interest of all of them does not appear, Virginia Citizens' Consumer Council alleges that the Secretary's action harmed its approximately 500 members who eat meat and meat products. On cross-motions for summary judgment, the court granted appellees' motion, holding that the regulations were rationally based and supported by evidence in the administrative record, and that the Secretary did not violate the Administrative Procedure Act by promulgating them without affording appellants an opportunity to comment on certain studies. Community Nutrition Institute, Inc. v. Block, Civil No. 82-2009, slip op. (D.D.C. Dec. 1, 1982) ("mem. op."). This appeal ensued. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

II

The Secretary of Agriculture has express statutory authority to "make such rules and regulations as are necessary for the efficient execution" of the Federal Meat Inspection Act, 21 U.S.C. Sec. 621, and to prescribe ...