Helco Products Co. v. McNutt, 8344.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation137 F.2d 681
Docket NumberNo. 8344.,8344.
PartiesHELCO PRODUCTS CO., Inc., v. McNUTT, Federal Security Adm'r, et al.
Decision Date28 June 1943

137 F.2d 681 (1943)

HELCO PRODUCTS CO., Inc.,
v.
McNUTT, Federal Security Adm'r, et al.

No. 8344.

United States Court of Appeals for the District of Columbia.

Decided June 28, 1943.


Mr. Louis Halle, of New York City, with whom Messrs. Harry P. Warner and Philip J. Hennessey, Jr., both of Washington, D. C., were on the brief, for appellant. Mr. David E. Tolman, of Washington, D. C., also entered an appearance for appellant.

Mr. Edward B. Williams of the Bar of the State of Arkansas, of Washington, D. C., pro hac vice by special leave of Court, with whom Messrs. Edward M. Curran, United States Attorney, Charles B. Murray, Assistant United States Attorney, and Jack B. Tate, General Counsel, Federal Security Agency, all of Washington, D. C., were on the brief, for appellees. Messrs. Bernard J. Long, Assistant United States Attorney, and John P. Burke, Assistant United States Attorney, both of Washington, D. C., also entered appearances for appellees.

Before PARKER, Circuit Judge, sitting by designation, and MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

Appellant sued in the District Court for a declaratory judgment against the Federal Security Administrator and the Attorney General. The case stated in its complaint is, in substance, as follows: Appellant intends to ship in interstate commerce white poppy seeds, for use on bakery products, to which it intends to add a blue color by means of a harmless vegetable dye; the seed would be sold in bulk packages labeled with an explanation of the manner of coloring; the reason for the addition of the color is that blue poppy seeds are more in demand, but, on account of wartime restrictions of importations, are unavailable; appellant, through its attorney explained its intentions in a letter to the Food and Drug Administration of the Federal Security Agency, and explained why it did not consider its proposed business activities to be at variance with the provisions of the Federal Food, Drug, and Cosmetic Act1; it requested an

137 F.2d 682
expression of opinion from the Food and Drug Administration as to the legality of the interstate shipment of such a food product, and was advised by Walter G. Campbell, Commissioner of Food and Drugs, that, in the opinion of the Food and Drug Administration, such an artificially colored product would be adulterated within the meaning of Section 402(b) of the Federal Food, Drug, and Cosmetic Act.2 Appellant alleged, also, in its complaint in the District Court, that on June 3, 1942 it sent to the Attorney General of the United States, the following telegram: "Our client, The Helco Products Company Inc., 111 Hudson Street New York desires to ship white poppy seed dyed blue with a harmless vegetable dye in interstate commerce. J K Kirk of the Food and Drug Administration by radiogram dated December 18, 1941, stated that such action would be a violation of law. This was supplemented by a letter of February 23 signed by W G Campbell, Commissioner of Food and Drugs, reaffirming the department's attitude as stated in the radiogram. We should like to know whether you would hold such action on my client's part a violation of law and if you would institute prosecution on such a holding. Kindly wire answer collect, as the matter is being held in abeyance by the Court pending a motion made in an action by my client against Federal Security Administrator for a declaratory judgment." In reply to this telegram, the Attorney General, on June 2, 1942, informed appellant: "Liturgic white poppy seed dyed blue please be advised that the Attorney General is authorized by law to give opinions only to the President and heads of Executive Departments." Upon the basis of these allegations, appellant alleged further that in the event it ships dyed poppy seeds in interstate commerce, the Food and Drug Administration will advise the Attorney General that the shipment thereof constitutes a violation of the Federal Food, Drug, and Cosmetic Act; that the Attorney General will thereupon "effectuate the recommendation of the Food and Drug Administration," by seizing and condemning such dyed poppy seeds in interstate commerce, or, in the alternative, will bring criminal proceedings against appellant, its agents and employees; that appellant has no adequate remedy at law; wherefore, appellant demands judgment against the Federal Security Administrator and the Attorney General, declaring that the Federal Food, Drug, and Cosmetic Act does not prohibit the interstate shipment of artificially colored poppy seeds, properly labeled

The issue which we must decide is whether there is a case of actual controversy within the meaning of the Declaratory Judgment Act;3 in other words, whether the facts alleged, under all the circumstances, show that there is a substantial controversy...

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35 practice notes
  • National Automatic Laundry and Cleaning Council v. Shultz, 22692.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 31, 1971
    ...at 1517. And the Court noted there was "no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681 * * *." This court's 1943 Helco opinion involved acts not yet done by the person subject to the challenged regulatory activity. Helco had writ......
  • Arrow Lakes Dairy, Inc. v. Gill, Civ. No. 8918.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 27, 1961
    ...6 In several cases informal administrative opinions have been held unripe for review. Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345 (D.C.Cir.1943); Miles Laboratories, Inc., v. F. T. C., 78 U.S.App. D.C. 326, 140 F.2d 683 (D.C.Cir., cert. denied 322 U.S. 752......
  • Abbott Laboratories v. Gardner, 39
    • United States
    • United States Supreme Court
    • May 22, 1967
    ...is quite clearly definitive. There is no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345, or only the ruling of a subordinate official, see Swift & Co. v. Wickham, D.C., 230 F.Supp. 398, 409, aff'd, 2 Cir., 364 F.2d 2......
  • Chelsea Community Hospital v. Michigan Blue Cross Ass'n, Civ. A. No. 75-71379.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 3, 1977
    ...agency must render advisory opinions on request, and the Court is aware of none. Cf. Helco Products v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681 (1943). Certainly such opinions are not required by the constitutional guarantee of due The allegation that the hearing officer refused to follow "......
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34 cases
  • National Automatic Laundry and Cleaning Council v. Shultz, 22692.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 31, 1971
    ...at 1517. And the Court noted there was "no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681 * * *." This court's 1943 Helco opinion involved acts not yet done by the person subject to the challenged regulatory activity. Helco had writ......
  • Arrow Lakes Dairy, Inc. v. Gill, Civ. No. 8918.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 27, 1961
    ...6 In several cases informal administrative opinions have been held unripe for review. Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345 (D.C.Cir.1943); Miles Laboratories, Inc., v. F. T. C., 78 U.S.App. D.C. 326, 140 F.2d 683 (D.C.Cir., cert. denied 322 U.S. 752......
  • Abbott Laboratories v. Gardner, 39
    • United States
    • United States Supreme Court
    • May 22, 1967
    ...is quite clearly definitive. There is no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345, or only the ruling of a subordinate official, see Swift & Co. v. Wickham, D.C., 230 F.Supp. 398, 409, aff'd, 2 Cir., 364 F.2d 2......
  • Chelsea Community Hospital v. Michigan Blue Cross Ass'n, Civ. A. No. 75-71379.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 3, 1977
    ...agency must render advisory opinions on request, and the Court is aware of none. Cf. Helco Products v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681 (1943). Certainly such opinions are not required by the constitutional guarantee of due The allegation that the hearing officer refused to follow "......
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1 books & journal articles
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • April 1, 2015
    ...determinations, and other actions. See e.g. , United States v. Los Angeles R.R. Co., 273 U.S. 299 (1927); Helco Prods. Co. v. McNutt, 137 F.2d 681 (1943); FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). As discussed below, this history would later prove pivotal in how the courts interpret......

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