Lever Bros. Co. v. Maurer

• Decision Date: 15 May 1989
• Docket Number: No. C-2-88-955.,C-2-88-955.
• Citation: 712 F. Supp. 645
• Parties: LEVER BROTHERS COMPANY, Plaintiff, v. Steven D. MAURER, Director of the Ohio Department of Agriculture, Defendant.
• Court: U.S. District Court — Southern District of Ohio

712 F. Supp. 645

LEVER BROTHERS COMPANY, Plaintiff, v. Steven D. MAURER, Director of the Ohio Department of Agriculture, Defendant.

No. C-2-88-955.

United States District Court, S.D. Ohio, E.D.

May 15, 1989.

COPYRIGHT MATERIAL OMITTED

Robert M. Duncan, Kathleen B. Burke, Harry J. Lehman, Columbus, Ohio, and Terence F. Gilheany, H. Peter Haveles, Jr., Steven G. Brody, New York City, for plaintiff.

Anthony J. Celebrezze, Jr., Atty. Gen., Bennett A. Manning and Suzanne E. Mohr, Columbus, Ohio, for defendant.

MEMORANDUM AND ORDER

GRAHAM, District Judge.

Plaintiff Lever Brothers Company, a Maine corporation, filed a complaint on September 9, 1988 against Steven D. Maurer, Director of the Ohio Department of Agriculture. Plaintiff seeks a declaratory judgment holding that § 3717.16(D), Ohio Revised Code, is unconstitutional under the supremacy clause, the First and Fourteenth Amendments, and the commerce clause of the United States Constitution. Plaintiff further requests a permanent injunction against the enforcement of § 3717.16(D) by the State of Ohio or its agents.

This matter is now before the court for decision on plaintiff's motion for summary judgment and defendant's cross motion for summary judgment. The issues presented to the court are primarily questions of law, and the parties agree that there are no genuine issues of material fact.

The record before the court reveals that plaintiff has developed a product called "Dairybrook." Dairybrook is a dairy spread consisting of fifty percent butter. The remaining ingredients, include water, skim milk and gelatin, but no vegetable oil or margarine. Thus, Dairybrook is lower in calories than regular butter or margarine. Plaintiff anticipates a market for Dairybrook among those individuals who want to reduce their cholesterol and calorie intake without sacrificing real butter taste. Plaintiff has no plans to manufacture Dairybrook in Ohio, but does intend to distribute this product in Ohio and nationwide.

At the commencement of this action, the Dairybrook one pound package contained the name "DAIRYBROOK" along with the phrase "Reduced Calorie Butter Product" in smaller type. The label contains the phrase "50% LESS FAT, CHOLESTEROL & CALORIES THAN REGULAR BUTTER", and the word "butter" is also used in other descriptive wording on the package. Plaintiff intends to continue to use the word "butter" on the package and in advertising Dairybrook.

On April 25, 1988, plaintiff received a letter dated April 20, 1988 from the Ohio Department of Agriculture. This document advised plaintiff that a letter had been received concerning an unidentified product labeled in violation of Ohio Revised Code § 3717.16(D), which precludes the use of the word "butter" in labeling or advertising any product which is made in imitation of or as a substitute for butter. Plaintiff was told that this product could not be sold or distributed in Ohio. Subsequent correspondence with the Ohio Department of Agriculture revealed that the product referred to in the letter was Dairybrook. Plaintiff also learned that the other letter referred to in the Department's correspondence of April 20 was sent to defendant by Land O'Lakes, Inc., a manufacturer of butter and other butter products and a competitor of plaintiff's. The Land O'Lakes letter advised the defendant about the marketing of Dairybrook in the State of Florida and requested defendant's assistance in alerting his counterpart in that state to enforce any applicable labeling standards. Plaintiff subsequently filed the present action for declaratory judgment and to enjoin enforcement of § 3717.16(D).

The first issue before the court is defendant's argument that plaintiff lacks standing to maintain this action. The minimum criteria for standing under Article III of the United States Constitution require a party to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, that the injury fairly can be traced to the challenged action, and that the injury is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982).

Plaintiff has alleged that it has incurred actual or threatened injury by reason of defendant's expressed intention to enforce the provisions of § 3717.16(D), thereby satisfying the first two requirements. Defendant argues, however, that plaintiff cannot show that the injury alleged is likely to be redressed by a favorable decision. Defendant relies on a letter dated November 30, 1988, in which the Ohio Department of Agriculture informed plaintiff that in its opinion, the Dairybrook label also violates § 3715.60, Ohio Revised Code, which governs the misbranding of products. Thus, defendant argues, even if § 3717.16(D) is declared to be unconstitutional, the distribution of Dairybrook in Ohio would be challenged by the Department under § 3715.60.

The court finds that plaintiff's standing does not fail on this basis. The Supreme Court cases require no more than a showing that there is a "substantial likelihood" that the relief requested will redress the injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 2631 n. 20, 57 L.Ed.2d 595 (1978). Plaintiff need not prove that granting the requested relief is certain to alleviate the injury. International Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795 (D.C.Cir.1983).

Here, defendant claims that the Dairybrook label is misleading under § 3715.60. Defendant has not specified in what respect he has concluded that the Dairybrook label is misleading under § 3715.60, and in fact, that issue is not before the court in this case. The court notes that the United States Food and Drug Administration ("FDA") filed a forfeiture action in Florida alleging that the phrase "Reduced Calorie Butter Product" was misleading under the pertinent federal laws and regulations. However, Robert Lake, Director of the FDA's Office of Compliance, has stated that the FDA has no objection per se to the use of the word "butter" as part of a product's descriptive name. Plaintiff and the FDA have entered into a consent decree in the Florida action, whereby plaintiff has agreed to cease using the phrase "Reduced Calorie Butter Product" on cartons of Dairybrook distributed in interstate commerce. It is conceivable that plaintiff may devise a label for Dairybrook which does not violate § 3715.60, which contains no express prohibition against the use of the word "butter", yet still be faced with the prohibition contained in § 3717.16(D). The precise injury sought to be redressed by plaintiff in this case is that caused by its inability to market and advertise Dairybrook using the word "butter" due to defendant's threat of enforcement of § 3717.16(D). The relief sought will redress that injury, regardless of whether plaintiff later encounters other hurdles in its efforts to market Dairybrook in Ohio. Plaintiff has standing to maintain this action.

The next issue raised by the parties concerns the precise effect of § 3717.16(D). That section provides:

(D) "Butter" or any combination of "butter" with other words shall not be used in the label or in advertising any product which is made in imitation of or as a substitute for "butter."

The term "butter" is defined in § 3717.16(A), Ohio Revised Code, to mean a product made exclusively with milk or cream, with or without salt or coloring, and containing not less than eighty percent milkfat.

Defendant contends that § 3717.16(D) must be read in light of § 3715.60, which concerns misbranded food. As a food which has no definition or standard of identity, Dairybrook is governed by § 3715.60(I), which provides that a food is misbranded:

unless it bears labeling clearly giving:

(1) The common or usual name of the food, if any;

(2) In case it is fabricated from two or more ingredients, the common or usual name of each such ingredient;....

Defendant contends that since § 3715.60(I) would require the use of the word "butter" on the label if butter is an ingredient in the product, that section conflicts with and must be given effect over § 3717.16(D). In reaching this conclusion, defendant relies on certain Ohio provisions relating to statutory construction. Defendant notes § 1.51, Ohio Revised Code, which provides that when a general provision is in irreconcilable conflict with a special provision, the special provision prevails unless the general provision is a later adoption and the manifest intent is that the general provision prevail. Defendant contends that § 3715.60 is the special provision and should prevail. However, § 3717.16(D) addresses the labeling of a certain type of food product, namely, butter substitutes, whereas § 3715.60 concerns labeling in general. Thus, the court concludes that § 3717.16(D) is the more specific provision. The provisions are in conflict in this case, since it would be impossible for plaintiff to list "butter" as an ingredient pursuant to § 3715.60 without violating § 3717.16(D).

The parties are not in agreement as to which statute was the subsequent enactment. The prohibition against the use of the word "butter" was previously contained in § 3717.36, Ohio Revised Code, which predated the 1957 enactment of § 3715.60. Section 3717.36 was repealed in 1968 and was re-enacted and renumbered as § 3717.16(D). Under § 1.54, Ohio Revised Code, a "statute which is reenacted or amended is intended to be a continuation of the prior statute and not a new enactment, so far as it is the same as the prior statute." However, even assuming that § 3715.60 is considered the later enactment, the court cannot find a manifest intent on the part of the legislature that it should prevail over § 3717.16(D), as required by § 1.51, in light of the fact that the legislature had the...