Quaker Oats Co. v. Federal Security Administrator

• Decision Date: 26 June 1942
• Docket Number: No. 7765.,7765.
• Citation: 129 F.2d 76
• Parties: QUAKER OATS CO. v. FEDERAL SECURITY ADMINISTRATOR.
• Court: U.S. Court of Appeals — Seventh Circuit

129 F.2d 76 (1942)

QUAKER OATS CO. v. FEDERAL SECURITY ADMINISTRATOR.

No. 7765.

Circuit Court of Appeals, Seventh Circuit.

June 26, 1942.

COPYRIGHT MATERIAL OMITTED

Geo. I. Haight, Ward Ross, William D. McKenzie, and James M. Best, all of Chicago, Ill. (Merrill E. Olsen, of Chicago, Ill., of counsel), for petitioner.

Wendell Berge, William W. Barron, and Louis B. Schwartz, all of Washington, D. C. (Edward B. Williams and William W. Goodrich, both of Washington, D. C., of counsel), for respondent.

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is a petition for review of respondent's order, entered May 26, 1941, promulgating regulations fixing and establishing definitions and standards of identity for "farina" and "enriched farina" and numerous related flour mill products.

The authority relied upon by respondent is contained in Section 341, Title 21, U.S.C.A., entitled "Definitions and Standards for Food." (Section numbers used in this opinion refer to U.S.C.A.) The section, so far as here material, provides: "Whenever in the judgment of the Administrator such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, and/or reasonable standards of fill of container: * * *".

The Administrator, after notice and hearings participated in by members representing the pertinent industry, as well as consumer representatives, adopted findings of fact and concluded on the basis thereof that the regulations included in his order would promote honesty and fair dealing in the interest of consumers. Then follows the regulations fixing standards for a large number of flour products, as well as those involved in this proceeding, namely "farina" and "enriched farina." The former, designated as Reg. 15.130, defines farina as the food prepared by grinding and bolting clean wheat, other than durum wheat and red durum wheat, to a prescribed fineness, with bran coat and germ removed to the extent that the percentage of ash in the final product, calculated to a moisture free basis, does not exceed .6 percent, The latter, designated as Reg. 15.140, defines enriched farina as conforming to the standard fixed for farina, except that it contains prescribed minimum quantities of vitamin B1, riboflavin, nicotinic acid, and iron. Enriched farina, under the Administrator's standard, may contain as optional additional ingredients vitamin D, calcium, wheat germ, and disodium phosphate.

While there is some disagreement as to the contested issues involved, we think they may be fairly summarized by petitioner's contention, disputed by respondent, that each of the regulations is unreasonable, that they do not promote honesty and fair dealing in the interest of consumers, and are not supported by substantial evidence. Furthermore, it is contended by petitioner that respondent was without authority to promulgate a regulation concerning enriched farina which had not been marketed theretofore, that the notice of the hearing did not purport to authorize the reception of evidence concerning such standard and that, as a matter of fact, evidence was not received pertinent thereto. It is also contended with respect to both standards that respondent, in administering the Act, has reached an unconstitutional result.

The basis upon which we think this case must be decided makes it unnecessary to enter into a discussion as to the character of notice given by respondent. It is sufficient to state that while petitioner's contention is not without merit, yet we are of the view that its participation in the hearings, both the original and the adjourned, were such as to preclude it from successfully invoking such issue. Likewise, we think it is unnecessary to enter into a discussion of petitioner's contention that the findings are without substantial support. For the purpose of this opinion (with certain exceptions noted hereinafter) we accept them.

It is, therefore, sufficient to summarize the findings as made by respondent. A major portion of the hearings was devoted to the numerous grades of flour and only a minor portion to farina. As a consequence, most of the findings, strictly speaking, pertain to flour, which petitioner contends have no relevancy to farina and were, therefore, improperly included in the record. It must be conceded, we think, that there is such a close relationship between flour or, at any rate, some of the grades thereof, and farina, that it would be impractical, if not impossible, to consider the evidence and findings concerning the latter without giving consideration to the former.

Farina is a product obtained by grinding wheat and separating the bran coat and germ of the grain from the endosperm. It consists essentially of endosperm in particles larger than permissible in flour, the size of the particles being the principal characteristic distinguishing the product from flour. In fact, it corresponds substantially to a fine grade of white flour known as "Patent Flour." It is used as a breakfast food, as an ingredient of macaroni products and extensively as a cereal food for children.

It was found that the removal of the bran coat and germ in the manufacture of flour and farina eliminates those parts of the wheat which are richest in vitamins and minerals. It was also found there exists a serious and widespread nutritional deficiency in children, as well as in adults, of vitamin B1, riboflavin, nicotinic acid, iron, calcium and vitamin D. These elements are available as synthetic compounds and are suitable for the enrichment of flour and farina. It was further found that vitamin D and calcium are used singly as enrichments of flour and farina, but consumer education has generally recommended dairy products as the most desirable source of the calcium and milk as the product most suitable for enrichment with vitamin D. It was found, however, that the addition of D and calcium as optional ingredients in enriched flour and enriched farina would be useful for those who consume insufficient dairy products.

It was found that manufacturers have recently placed on the market flours and farinas enriched with one or more of these nutritional elements.¹ The composition of these enriched products varies widely, so it is found, and unless a standard limiting the kinds and amounts of enrichment is adopted, the manufacturers' selection of nutritional elements is likely to lead to a great diversity of enrichments, both quantitative and qualitative. Such diversity would tend to confuse and mislead consumers as to the relative value and need of the several nutritional elements, and would impede rather than promote honesty and fair dealing in the interest of consumers. Indiscriminate enrichment with vitamins and minerals would tend to confuse and mislead consumers by giving rise to conflicting claims regarding the beneficial effects of various vitamins and minerals, and would be likely to lead to the impression on the part of consumers that a single article of food, so enriched, would meet all nutritional needs.

It was also found that, pending experience with the use of enriched flour and enriched farina, consumer education and understanding would be facilitated by restriction of enrichment with respect to the ingredients and, as to farina, the minimum amounts of such ingredients. The findings further recite that flour and farina enriched with vitamins and minerals have not acquired common or usual names, but that such products may be accurately designated as "enriched flour" and "enriched farina."

Upon the basis of such findings, respondent concluded that it would "promote honesty and fair dealing in the interest of consumers" to adopt the standards of identity for farina and enriched farina embodied in the regulations in controversy. The record discloses certain other evidence not specifically covered by the findings, but not inconsistent therewith, to which we briefly refer.

Petitioner has, since April, 1932, sold its product, labeled on the front panel of the package, "Quaker Farina Wheat Cereal, enriched with vitamin D," or "Quaker Farina enriched by the Sunshine Vitamin." On the back panel of the package is the following description: "contains 400 U. S. P. units of Vitamin D per ounce, supplied by approximately the addition of 1/5th of 1 per cent irradiated dry yeast."

During such period it has sold millions of packages annually and its product is of national reputation.

Vitamin D functions in regulating the metabolism of calcium and phosphorus in the body and is, therefore, concerned with the proper formation of bones and teeth. It is recognized as especially beneficial in the infant and growing child as a preventative and therapy of rickets and the building of strong bones and teeth. It is also an essential vitamin for adults. There is medical testimony to the effect that of all the known vitamins, it is the one most deficient in normal diet and should, therefore, be supplied in foods which are consumed regularly by the great mass of population, particularly those in the low income groups. While the Administrator found that milk was the most appropriate carrier for vitamin D, it is not disputed but that farina is also a proper carrier. Vitamin D in nature is found almost exclusively in sunshine and certain fish livers which are unavailable to humans in the normal diet. Therefore, as we understand, this vitamin is deficient in ordinary food products except when artifically supplied.

Thus, we have a situation where farina, with the addition of vitamin D, as manufactured and marketed by petitioner, is admittedly a wholesome and healthful product (it is admitted in respondent's brief that vitamin D is a beneficial substance), and that it has been sold to millions of consumers,...