Original Honey Baked Ham Co. of Georgia, Inc. v. Glickman

• Decision Date: 09 April 1999
• Docket Number: No. 98-5244,98-5244
• Citation: 172 F.3d 885
• Parties: The ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, INC., Appellee, v. Daniel R. GLICKMAN, Secretary, United States Department of Agriculture, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 885

172 F.3d 885

335 U.S.App.D.C. 284

The ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, INC., Appellee, v. Daniel R. GLICKMAN, Secretary, United States Department of Agriculture, et al., Appellants.

No. 98-5244.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 9, 1999.

Decided April 9, 1999.

Constance A. Wynn, Attorney, U.S. Department of Justice, argued the cause for appellants. With her on the briefs were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Barbara C. Biddle, Assistant Director, U.S. Department of Justice.

Robert G. Hibbert argued the cause and filed the brief for appellee.

Before: WALD, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Thanksgiving, Christmas and Easter are the busiest times of year for The Original Honey Baked Ham Company of Georgia. To capture more of the market during these periods, Honey Baked decided to open temporary "kiosks" in shopping malls near its ninety-seven retail stores. Two of the company's products--cooked hams and turkeys--attracted the attention of the Agriculture Department's Food Safety and Inspection Service, which enforces the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq., and the Poultry Products Inspection Act, 21 U.S.C. § 451 et seq. The question in this appeal from the judgment of the district court is whether the retail stores supplying the kiosks are subject to certain federal inspection requirements imposed by those statutes.

The Honey Baked Ham Company purchases its hams and turkeys from federally-inspected meat and poultry processors; the products arrive at the company's retail stores fully cooked. ¹ The Agriculture Department inspects the hams and turkeys during slaughtering, and again during the cooking and curing processes. At Honey Baked's retail stores, the hams are sliced and glazed, the turkeys sliced, and both items are packaged for sale. Before the current dispute arose, the company's retail stores had never been subject to the inspection requirements of the Meat Inspection Act or the Poultry Inspection Act. But after Honey Baked revealed its plan to open kiosks in shopping malls during its peak sales periods, the Agriculture Department said that federal inspection requirements would apply to the company's retail stores supplying the kiosks. ² (At the kiosks, which are booths with refrigeration units, no product preparation would occur.)

Given this official advice, the company understood that if it went forward with its marketing plan without permitting federal inspection of its retail stores, it could be subject to product seizures, criminal prosecutions and other regulatory sanctions. The company therefore sued for a declaratory judgment and an injunction, which the district court granted on the company's motion for summary judgment. See The Original Honey Baked Ham Co. v. Glickman, C.A. No. 97-440, mem. op. at 7 (D.D.C. Apr. 17, 1998). The Agriculture Department has now appealed. Reviewing the district court's grant of summary judgment de novo, see Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C.Cir.1997), we affirm.

The Department derives its inspection authority, as far as the company's hams are concerned, from the following section of the Federal Meat Inspection Act:

[T]he Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all meat food products prepared for commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment....

See 21 U.S.C. § 606. The Meat Inspection Act defines "prepared" as "slaughtered, canned, salted, rendered, boned, cut up, or otherwise manufactured or processed." See 21 U.S.C. § 601(l ). The parallel section of the Poultry Products Inspection Act provides that "[t]he Secretary, whenever processing operations are being conducted, shall cause to be made by inspectors post mortem inspection of the carcass of each bird processed...." See 21 U.S.C. § 455(b). The Poultry Inspection Act's definition of "processed" is almost identical to the Meat Inspection Act's definition of "prepared." The term means "slaughtered, canned, salted, stuffed, rendered boned, cut up, or otherwise manufactured or processed." See 21 U.S.C. § 453(w). ³ The Department's position is that the inspection provisions generally apply to retail establishments, unless those establishments fall within the Acts' express retail exemptions, of which more in a moment. In the Department's view, the company's stores cannot qualify for the retail exemptions if products prepared there are sold elsewhere.

Both parties believe, as do we, that the Meat Inspection Act and the Poultry Inspection Act should, so far as possible, be construed to have the same meaning. The company's retail establishments supplying kiosks should, in other words, either be subject to federal inspection or not, regardless whether they handle hams or turkeys, or both. We say this not only because the Acts are parallel in most respects, and identical in others. See Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir.1996). We say it as well because the Acts share the common purpose of ensuring that meat and poultry products are "wholesome, [and] not adulterated," all to the end of protecting the "health and welfare of consumers" and the market for wholesome and unadulterated products. See 21 U.S.C. §§ 451, 602.

That the inspection provisions of the Acts do not generally apply to meat and poultry products prepared in retail establishments is tolerably clear. So far as we can tell, this had been settled for some time as a result of a 1972 Opinion of the Attorney General regarding the Meat Inspection Act, an opinion we find thoroughly convincing. Compare Benavides v. DEA, 968 F.2d 1243, 1248 (D.C.Cir.1992). The Meat Inspection Act lists the sorts of establishments subject to federal inspection: "any slaughtering, meat-canning, salting, packing, rendering, or similar establishment." See 21 U.S.C. § 606. Because the list does not include retail establishments, one would suppose that meats prepared in retail stores are not subject to the federal inspection requirements. See, e.g., Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C.Cir.1989). Retail stores are not "similar" to the types of wholesale businesses listed in the statute. See 21 U.S.C. § 606. The functions of slaughtering and packing plants differ considerably from those of retail establishments. See Applicability of the Federal Meat Inspection Act to Retail Establishments, 42 Op. Att'y Gen. 461 (1972). The Meat Inspection Act thus strongly suggests that retail establishments are exempt from the federal inspection requirements. See D & W Food Centers, Inc. v. Block, 786 F.2d 751, 756-57 (6th Cir.1986). That the statute does not contain an explicit exception for retail operations is not particularly significant. A statute listing the things it does cover exempts, by omission, the things it does not list. As to the items omitted, it is a mistake to say that Congress has been silent. Congress has spoken--these are matters outside the scope of the statute. See Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1088 (D.C.Cir.1996).

Another provision in the Meat Inspection Act fortifies the conclusion that retail establishments are not subject to inspection. The Act applies when meat food products are "prepared" in the types of establishments listed. The Act defines "prepared" to include cutting up or boning meat, see 21 U.S.C. § 601(l ), activities routinely performed in retail stores. But the definition closes with the phrase "or otherwise manufactured or processed," thus qualifying all the activities mentioned. See id. Slicing ham in a retail store is not "processing" or "manufacturing," as those terms are generally understood. See 42 Op. Att'y Gen. at 461-62. Operations traditional to retail stores therefore fall outside the scope of the Meat Inspection Act.

The language of the Poultry Inspection Act points in the same direction. This Act requires inspection "whenever processing operations are being conducted ... of the carcass of each bird processed," a phrasing somewhat different than the parallel section of the Meat Inspection Act. See 21 U.S.C. § 455(b), compare § 606. As the Agriculture Department points out, the Poultry Inspection Act also does not contain a descriptive list of establishments subject to inspection, but refers generally to "processing operations." See 21 U.S.C. § 455(b). Although the Attorney General's opinion does not discuss the Poultry Inspection Act, some elements of his analysis are nevertheless apt. The Poultry Inspection Act's definition of "processed," like the Meat Inspection Act's definition of "prepared," could be read to reach routine retail store activities such as slicing poultry. See 21 U.S.C. §§ 601(l ), 453(w). But slicing a chicken or turkey is not a "processing operation[ ]," as that term is generally understood, just as slicing a ham at a retail store is not "manufacturing" or "processing," as those terms are generally understood. Compare 42 Op. Att'y Gen. at 461-62. ⁴ Given the desirability of reading these two Acts in pari materia, we therefore believe retail stores where poultry is simply sliced and packaged also fall outside the scope of the inspection provision in the Poultry Inspection Act.

Another feature common to both Acts tends to show that the inspection provisions do not reach retail establishments. See 42 Op. Att'y Gen. at 466-67. Provisions in both the Meat and Poultry Inspection Acts exempt retail establishments located in "designated" States if their products are distributed intrastate. See 21 U.S.C. §§ 454(c)(2),...