CTR. FOR SCIENCE IN PUB. INT. v. Dept. of Treasury, Civ. A. No. 82-610.

• Decision Date: 09 February 1983
• Docket Number: Civ. A. No. 82-610.
• Citation: 573 F. Supp. 1168
• Parties: CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Plaintiffs, v. DEPARTMENT OF THE TREASURY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

573 F. Supp. 1168

CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Plaintiffs, v. DEPARTMENT OF THE TREASURY, et al., Defendants.

Civ. A. No. 82-610.

United States District Court, District of Columbia.

February 9, 1983.

Bruce Silverglade, Center for Science, Washington, D.C., for plaintiffs.

A. Patricia Frohman, Asst. U.S. Atty., Washington, D.C., for defendants.

Arnold M. Lerman, Washington, D.C., for Wine Institute.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

Plaintiffs, the Center for Science in the Public Interest (CSPI), a consumer health organization, and two individual consumers brought suit under the Federal Alcohol Administration Act and the Administrative Procedure Act against the Department of the Treasury (the Department) for rescinding alcoholic beverage ingredient disclosure regulations.¹ These regulations, promulgated in 1979, were designed to inform consumers, especially those with allergies, of the contents of alcoholic beverages. Defendant Wine Institute was permitted to intervene in support of the Department's decision to rescind and Banfi Products Corporation filed a brief as amicus curiae in support of plaintiffs' position. The case is now before us on the parties' cross-motions for summary judgment.

I. History of the Action

A. Statutory Background

The statutory authority for the Treasury Department's regulation of alcoholic beverages which it exercises through the Bureau of Alcohol, Tobacco, and Firearms (BATF), is the Federal Alcohol Administration Act, 27 U.S.C. § 201 et seq. (1976) (the Act). The Act, originally passed in 1935, directs the Secretary of the Treasury to prescribe regulations

... with respect to packaging, marking, branding, and labeling and size and fill of container (1) as will prohibit deception of the consumer with respect to such products or the quantity thereof and as will prohibit, irrespective of falsity, such statements relating to age, manufacturing processes, analyses, guarantees, and scientific or irrelevant matters as the Secretary of the Treasury finds to be likely to mislead the consumer; (2) as will provide the consumer with adequate information as to the identity and quality of the products, the alcoholic content thereof ... the net contents of the package, and the manufacturer or bottler or importer of the product....

27 U.S.C. § 205(e) (1976).

At the time the Act was passed, the Director of the Federal Alcohol Control Administration, predecessor of BATF, explained the congressional intent of Section 205(e):

Now, the provisions of this bill show that the purpose was to carry that regulation into certain particular fields in which control of interstate commerce in liquors was paramount and necessary ....

These regulations were intended to insure that the purchaser should get what he thought he was getting, that representations both in labels and advertising should be honest and straightforward and truthful. They should not be confined, as the purefood regulations have been confined, to prohibitions of falsity, but they should also provide for the information of the consumer, that he should be told what was in the bottle, and all the important factors which were of interest to him about what was in the bottle.

HEARINGS ON H.R. 8539 BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 74th Cong., 1st Sess. 10 (1935) (statement of Joseph H. Choate).

On February 25, 1979, BATF, in order to implement its statutory mandate, published several proposed regulations calling for ingredient labeling in the Federal Register. Congress was aware of BATF's decision. In 1979, after the BATF announcement, the House Committee on Appropriations attempted to prohibit the expenditure of funds in connection with the promulgation of such regulations. H.R.REP. NO. 248, 96th Cong., 1st Sess. 10 (1979). The Senate Committee on Appropriations, however, supported the proposed regulations:

On February 2, 1979, the Bureau published in the Federal Register several proposed regulations which would require the ingredient labeling of alcoholic beverages. The Committee believes that these regulations, accommodated for the substantive points raised by the industry and other interested parties, should be of benefit to the public.

S.REP. NO. 299, 96th Cong., 1st Sess. 12 (1979).

The Conference report reflects that the limiting amendment proposed by the House was rejected.

Amendment No. 7: Deletes language proposed by the House and stricken by the Senate which prohibits the use of funds for issuing or carrying out proposed rules on labeling of wine, distilled spirits and malt beverages.

H.R.CONF.REP. NO. 471, 96th Cong., 1st Sess. 6 (1979).

B. Promulgation of the Ingredient Labeling Regulation

BATF has been considering ingredient labeling proposals for the last decade. It first proposed such regulations in 1974 but no final rule was promulgated at that time. The regulations which were proposed in February, 1979 and are the subject of this suit were published and a final rule was issued on June 13, 1980.² BATF explained that:

This rule requires ingredient disclosure on labels of wine, distilled spirits, and malt beverages. These regulations, however, provide an exception to this requirement. Under this exception the ingredient list will not be required to appear on the label when the producer, bottler, or importer: (1) elects to make an ingredient list available upon request; (2) places a statement on the front label or a separate strip label notifying the consumer of the availability of an ingredient list and provides the name and, somewhere on the label, a full mailing address in the United States where such an ingredient list can be obtained upon request; and (3) does not place a statement on the label which could be misconstrued to be an ingredient list. This exception gives industry maximum flexibility to provide ingredient information at minimum cost. At the same time, it provides consumers who have the need or desire to avoid various ingredients a means to do so, thus meeting the objective of the regulatory proposal. Because of special health problems, this rule also mandates the disclosure on the label, in all instances, of the presence of FD & C Yellow No. 5 whenever it is used in a product.

45 Fed.Red. 40538 (1980).

In its final publication on June 13, 1980 in the Federal Register, BATF devoted six pages to explaining its reasons for issuing the regulations. It detailed the steps of its Regulatory Analysis, which included an outline of the possible steps that could be taken to deal with the problem of ingredient disclosure, a consumer poll, and a cost-benefit study conducted by the BDM Corporation, a private consultant hired by BATF. The Bureau also received 1,873 comments in response to Notice No. 314 from consumers, special interest groups, industry members, doctors, government agencies, and members of Congress.

The BDM study emphasized that widely different conclusions could be reached concerning the value of ingredient labeling, depending on the assumptions used. Major findings of the study included:

2. Estimates of expected costs of mandated ingredient labeling to industry and the Government based on the information submitted, range between a low of $12 million per year to almost $150 million per year. The major factors that contribute to this range of estimates are the use of a back label, advertisement costs, and markups that might be applied by the industry at different points in the distribution channel. The `advertisement costs' were submitted directly to BDM by one winery after the comment period and from this one submission BDM estimated a total annual $25 million advertising cost for the entire wine industry.

3. Start-up costs amount to approximately $18 million for the entire industry if no additional back labels are used; if additional back labels are used by all producers not presently using back labels, the `total potential investment cost for the three industries, as reported by the industries, are in excess of $35 million.'

4. BDM found `strong evidence' in the medical research literature that indicated `ingredients used in alcoholic beverages can cause adverse health effects in humans.' BDM found that while most of the effects are not necessarily severe, some are severe. The study also reports that adverse effects are `not limited to allergic reactions.' It is impossible, however, to determine exactly either how many people are affected (the range BDM gave is anywhere from 475,000 to 1,700,000) or how much money in health costs could be saved if ingredients were listed. (A wide range of estimates ranging from approximately one-half million dollars to four hundred million dollars was considered possible, depending on which assumptions were considered the most appropriate.)

45 Fed.Reg. 40539 (1980).

It is important to note that the BDM study did not contemplate the option that the final regulations gave to manufacturers to provide ingredient lists to consumers upon request and to make known the availability of such lists by stating on the label the name and address where such lists can be obtained. The study also did not address the health benefits of ingredient labeling other than prevention of allergic reactions.³

Based on the BDM study, the poll of consumers, and the comments and studies submitted in response to the proposed rulemaking, the Treasury Department stated that it was

... convinced that the disclosure of ingredients used in the production of alcoholic beverages is of real value. This disclosure will provide consumers with adequate information about the identity and quality of the product which will enable a consumer to make an informed choice in the purchasing of alcoholic beverages .... However, to minimize the costs while still meeting basic policy objectives, producers, bottlers or importers who elect to make ingredient lists available upon request, notify consumers of their availability, and who avoid implied label

...