Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
Atlas Powder Company and Glyco Products Company, Inc., each suing as a "person who will be adversely affected by" an order of the Federal Security Administrator establishing, pursuant to Section 401 of the Food, Drug, and Cosmetic Act, 52 Stat. 1046, 21 U.S.C.A. § 341, a standard of identity for bread, have filed in this court separate petitions for review of that order as authorized by Section 701(f) of the Food, Drug, and Cosmetic Act, 52 Stat. 1055, 21 U.S.C.A. § 371(f), and Section 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009.
Both petitioners manufacture, though by different processes, a chemical descriptively denominated polyoxyethylene monostearate. Glyco markets its product under the brand names "Sta-Soft" and "S-541". The principal Atlas product is called "Myrj 45". These products are used by commercial bakers to make bread softer for a longer time after baking than it would be without some such additive.
When, pursuant to Section 401 of the Food, Drug and Cosmetic Act, the Administrator convened a proceeding to establish a definition and standard of identity for bakery products, Atlas and Glyco appeared and asked, and attempted to prove, that the standard of identity for bread should include their softeners as optional ingredients. The Administrator refused thus to amplify the standard and petitioners have sought judicial review.
We consider first certain legal contentions made by Glyco. Although this party asked the Administrator to include its products in the standard description of bread, it now makes a principal argument that the matter of including such an ingredient as "Sta-Soft" in bread is not within the purview of Section 401 at all and can not be controlled by administrative action under that section.*fn1 The propriety of such a challenging of the power of the Administrator over a particular subject matter by the very party who has asked that the Administrator take affirmative action with reference to that subject matter may be questionable. However, the issue before us is the validity and effect of an administrative regulation of nation-wide application to the food industry and of general importance to consumers. In the light of all of the interests involved, we think possible inconsistencies in the position of the petitioner should not prevent us from considering and adjudicating at petitioner's request the question whether the use of chemical softener in bread is a subject matter properly covered and controlled by a standard of identity for bread promulgated under Section 401.
Section 401 reads as follows:
"Whenever in the judgment of the Secretary 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: * * * In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Secretary shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. * * *"
On its face this language seems to empower the Administrator, in his effort to fix a standard of identity for a fabricated food, to consider every ingredient proposed for inclusion in the standard description and to include or exclude each as, after appropriate investigation, may appear reasonable. Beyond this, flexibility in action upon such proposals is afforded by the statutory provision for the inclusion of particular ingredients as optional components in the standard of identity. And we have it on highest authority that "The statutory purpose to fix a definition of identity of an article of food sold under its common or usual name would be defeated if producers were free to add ingredients, however wholesome, which are not within the definition" either as required or permissive components. See Federal Security Administrator v. Quaker Oats Co., 1943, 318 U.S. 218, 232, 63 S. Ct. 589, 597, 87 L. Ed. 724.
It seems to be petitioner's contention here that the foregoing generalization does not apply to the case at hand. It is argued that a standard of identity for a named class of food is properly concerned only with the inclusion and proportions of ingredients which are shown to be definitive or characteristic of the species. The accomplishment of standardization is said not to be affected in any significant way by the inclusion or exclusion of less consequential ingredients which do not change the essential description or properties of the food. In this case the supposed limitation upon the function and effect of statutory standardization is reflected in a claim that though the administrative order standardizing bread does not approve the addition of "Sta-Soft", the addition of that ingredient involves no departure from the standard because the food is still bread and essentially the same kind of bread whether the softening chemical is added or left out.
But this rationalization is self-defeating if only because it covers too much. Under it the addition of vitamins at will would have to be permitted under any proper statutory standard of identity established under Section 401 for a cereal. But in the Quaker Oats case, supra, the Supreme Court has made it clear that this is not true. So too, the addition of a harmless preservative to a manufactured food, for example, a bit of soldium benzoate to tomato catsup, would have to be permitted under any standard of identity for catsup. The contrary was held by the Court of Appeals for the Second Circuit in Libby, McNeil and Libby v. United States, 1945, 148 F.2d 71. Similarly, the Court of Appeals for the Eighth Circuit has viewed a standard for oleomargarine as properly controlling the addition of artificial coloring, artificial flavoring, vitamins and preservatives. Land O'Lakes Creameries, Inc. v. McNutt, 1943, 132 F.2d 653. Beyond inconsistency with these cases, it seems to us that petitioner's reasoning lends itself to the reductio ad absurdum type of refutation. For logically petitioner would not let the Administrator challenge even the addition of a bit of arsenic to bread as inconsistent with any proper standard of identity or subject to control under the procedure for food standardization prescribed in Section 401.
We conceive of no workable way of determining what ingredients, in petitioner's conception, are relevant to standarization of a food and what ingredients in what amounts can be added at will to a food as beyond the reach of standardization achieved under Section 401. We believe that Congress has not complicated the practical administration of standards by any distinction so pointless and impractical. Rather we are convinced that all ingredients proposed for use in the fabrication of a food are comprehended by the administrative process of standardization. Whether the standard evolved shall be strictly particularized and invariant or generalized and comprehensive of many different compositions of matter will depend upon proper administrative evaluation of the circumstances of each case.
But if the power of the Administrator under Section 401 is thus broadly construed, the petitioner next argues, then the statute itself contains a delegation of power so deficient in guides to and limitations upon its exercise as to invalidate the legislation and any administrative action thereunder. Petitioner is concerned particularly that the statutory scheme for standardization permits administrative approval of optional ingredients which a manufacturer may include or omit at will and still comply with the standard. This is said to show that administrative discretion in the designation of such optional ingredients is exercised at will without meaningful legislative control and ...