On Petition to Review an Order of the Federal Security Administrator.
Before SWAN, CHASE, and CLARK, Circuit Judges.
After extensive hearings held in accordance with the requirements of the Federal Food, Drug, and Cosmetic Act, of 1938, 52 Stat. 1040, 21 U.S.C.A. §§ 301-392, the Federal Security Administrator promulgated amended regulations which established definitions and standards of identity for canned apricots, cherries, peaches and pears. In so doing he undertook to act pursuant to § 401 of the above statute which provides as follows:
"Sec. 401 [ § 341]. Whenever in the judgment of the Administrator*fn1 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 f container. * * * In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Administrator 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. * * * "
Sec. 403 provides (a) that a food shall be deemed misbranded if in any particular its label is false or misleading; or, inter alia, if it purports to be, or is represented to be, a food for which a definition and standard of identity has been promulgated as provided in § 401 unless "its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients * * * present in such food." § 403(g)(2).
By virtue of § 701(e) the administrator may act upon his own motion or upon the application setting forth reasonable grounds for action, of all, or a substantial portion of any interested industry. When he does take such action he is required to hold a public hearing upon any proposal to issue, amend, or repeal any regulation contemplated by certain sections of the statute of which § 401 is one and at the hearing any interested person may be heard in person or by his representative. The Administrator shall make public his action in issuing, amending and repealing the regulation, or in determining not to take such action, as soon as practicable after completion of the hearing.
Sec. 701(f)(1) provides that: "In a case of actual controversy as to the validity of any order under subsection (e), any person who will be adversely affected by such order if placed in effect may * * * file a petition with the Circuit Court of Appeals of the United States for the circuit wherien such person resides or has his principal place of business, for a judicial review of such order. * * * "
Sec. 701(f)(3) confers jurisdiction upon such Circuit Court of Appeals, (so far as now invoked) to affirm the order, or to set it aside in whole or in part temporarily or permanently. It provides that the findings of the Administrator as to the facts shall be conclusive if they are supported by substantial evidence.
Following the above mentioned hearings, at which all these petitioners were represented, the Administrator duly promulgated, with regulations, the order which the petitioners are now seeking to have reviewed. Insofar as we are presently concerned the regulations dealt with the sweetening ingredients of the canned fruits previously mentioned and in respect to canned peaches, which may be taken as typical for all, provided in substance that all sugar might be used for sweetening though, as optional saccharine ingredients, dextrose might be used in stated proportions in combination with sugar and so might corn sirup. For the purposes of the regulations sugar was defined as "refined sucrose or invert sugar sirup. The term 'invert sugar sirup' means an acqueous solution of inverted or partly inverted, refined or partly refined sucrose, the solids of which contain not more than 0.3 percent of weight of ash, and which is colorless, odorless, an flavorless except for sweetness." Dextrose was defined as "the hydrated or anhydrous, refined monosaccharide obtained from hydrolized starch." Corn sirup was defined as "an aqueous solution obtained by the incomplete hydrolysis of cornstarch, and includes dried corn sirup; the solids of corn sirup and of dried corn sirup contain not less than 58 percent by weight of reducing sugars."
It was further provided that the optional packing media which contained an added sweetener, that might be sucrose or sucrose in combination with dextrose or with dextrose and corn sirup, should be designated as (3) slightly sweetened water or (4) light sirup; or (5) heavy sirup; or (6) extra heavy sirup; or (7) slightly sweetened peach juice; or (8) light peach juice sirup; or (9) heavy peach juice sirup; or (10) extra heavy peach juice sirup as the case might be. And when a sweetened packing media was used it was made a sufficient compliance with labeling requirements in that respect to use only the appropriate name from the above list without disclosing the fact that the sweetener was all sugar or sugar in one of the permitted combinations. Before this, canners of these fruits might use dextrose or corn sirup as a sweetener only if that fact was disclosed on the label. It is because this requirement was done away with that the petitioners now contend that they were adversely affected in a case of actual controversy to give them "standing to appeal" so as to bring this petition to review within the scope of § 701(f)(1).
The regulations further provided in respect to the content of the optional packing media already listed by name and the proportions to sucrose in which dextrose and corn sirup might be used that:
"As used in this paragraph the term 'water' means, in addition to water, any mixture of water and peach juice; and the term 'peach juice' means the fresh or canned expressed juice of mature peaches, of any varietal group, specified in paragraph (b) of ...