Petitioners Reply Brief — National Pork Producers Council v. Block

No. 80-742 |

mi

In the

| Supreme Cowt of the United States

Octoper Term, 1980

NATIONAL PORK PRODUCERS COUNCIL, CHARLES

GRASSLEY, THOMAS HAGEDORN, and STEVEN SYMMS,

Petitioners,

vs.

BOB BERGLAND, Secretary of Agriculture, CAROL TUCKER

FOREMAN, and DONALD H. HOUSTON,

Respondents.

On Petition for Writ of Certiorari to the Court of

Appeals for the Eighth Cireuit

REPLY BRIEF IN SUPPORT OF PETITION

DONALD P. COLLETON

Counsel of Record

JAMES L. FOX

ABRAMSON & FOX

One East Wacker Drive

Chicago, Illinois 60601

(312) 644-8500

Attorneys for Petitioners

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

TABLE OF CONTENTS

PAGE

I. Wrong Standard of Review oc.ccccccccccccceccsccsseceseeees 2

II. Post Hoe Rationalization Cannot Justify the

Rule’s Unlawful Purpose _....... eackadiadscstitaidecspleon 5

Ill. NEPA Has Been Disregarded ...0.000000000000........ 6

I ca ey 7

TABLE OF CASES

Angel v. Butz, 487 F.2d 260 (10th Cir. 1973), cert.

GOMNOG, GAT UG. DUT (T0TE) oon ncccccccoceccceceseseccerscotacceses 4

Burlington Truck Lines v. U. S., 571 U.S. 156 (1962) .. 4

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

I I a a 2

Federal Security Administrator v. Quaker Oats Co.,

a re a 3

Federation of Homemakers v. Butz, 466 F.2d 462 (D.C.

SIRIUS 5 cP NNR M EEN SN Sel ED See PAD 3

Houston v. St. Louis Independent Packing Co., 249

I UU i 3

Natione! Nutritional Foods Ass’n. v. Weinberger, 512

F.2d 688 (2nd Cir.), cert. denied, 423 U.S. 827 (1975) 4

U.S. v. Nova Scotia Food Products Corp., 568 F.2d 240

"Be AD» 9 eennenee dis calasaincbesbonieanaadiowiarlasaRticbasaated 4

STATUTES

RE | ae Mee ATR PRONE MS aoe 3

In the

Supreme Court of the United States

Ocroser Term, 1980

No. 80-742

NATIONAL PORK PRODUCERS COUNCIL, CHARLES

GRASSLEY, THOMAS HAGEDORN, and STEVEN SYMMS,

Petitioners,

VS.

BOB BERGLAND, Secretary of Agriculture, CAROL TUCKER

FOREMAN, and DONALD H. HOUSTON,

Respondents.

On Petition for Writ of Certiorari to the Court of

Appeals for the Eighth Cireuit

REPLY BRIEF IN SUPPORT OF PETITION

The government obscures the Rule’s grave jeopardy to

human health to minimize the rulemaker’s lack of requisite

attention to factors relevant to that jeopardy.

In truth the Rule creates a consumer trap. It permits,

for example, uncured product to be formulated in lengths,

shapes and colors identical to those of real hot dogs, to be

marketed in double decker 10 packs now associated with

real hot dogs, to bear ‘‘keep refrigerated’’ instructions now

2

appearing on real hot dog labels, to be packaged in wrapper

colors, styles and logos currently associated with the

processors of real hot dogs, to be merchandized in retail

coolers adjacent to, or indeed within, stacks of real hot

dogs, and to include the traditional name ‘‘hot dog’’ on

the label. The consumer’s only tip-off to this deadly trap

is the presence of the term ‘‘Uncured”’ and the indication

that the preservative nitrite is absent.

It may well be appropriate, where there is no health

hazard from confusion of product identity, to indulge in a

working hypothesis that ordinary consumers will read

labels under ordinary circumstances. That hypothesis,

however, much less the irrebutable presumption in reality

urged by the government, has no place where the cir-

cumstances promoting confusion are anything but ordinary,

where the ordinary consumer as well as the illiterate, the

non English speaking consumer and those with impaired

vision will be equally unprotected, and where the health

risk from confusion could be death.

I,

Wrong Standard of Review

The government in effect claims that judicial scrutiny

of the rulemaker’s inattention to the label adequacy issue,

Pet. 12-18—an undeniably ‘‘relevant factor’’ under Cuiti-

zens to Preserve Overton Park v. Volpe, 401 U.S. 402

(1971)—has been greatly limited if not completely fore-

closed by a ‘‘legislative determination’’, Br. Op. 9, that

labeling ‘‘is’’ an ‘‘effective means of protecting consum-

ers.’’ Id. As a consequence, argues the government, no

‘‘explicit fact-finding’’, Br. Op. 10, n. 6, is required on the

question of the adequacy of the present label to prevent

deadly botulism, and, in any event, for purposes of test-

ing the sufficiency of the challenged rulemaking it must be

3

assumed, by virtue of a definition of adulteration in the

Federal Meat Inspection Act, 21 U.S.C. §601(n)(6), that

‘the ordinary person in this country can read English

or will seek the aid of someone who can, and will act upon

reasonable warnings and instructions.’’ Br. Op. 11

Applicable law permits no such approach. It is now

common ground that a label cannot stand if deception,

injury or confusion would be likely but for an unsupported

assumption that consumers will read explanatory informa-

tion on it. Houston v. St. Louis Independent Packing Co.,

249 U.S. 479, 487 (1918); Mederation of Homemakers v.

Butz, 466 F.2d 462, 465-466 (D. C. Cir. 1972); Cf. Federal

Security Administrator v. Quaker Oats Co., 318 U.S. 218,

230-231 (1943). USDA therefore like any other agency was

obliged to consider the adequacy of the presently assailed

label, develop an adequate administrative record supporting

necessary findings on this issue, and draw conclusions

rationally supported by those findings. At a minimum

this would include an articulated explanation of its basis

for concluding, if it so concludes, that illiterates, non-

English speaking persons, consumers with impaired vision

and the like’ as well as ordinary persons unacquainted with

the nitrite controversy will be adequately protected against

botulism under the look and name alike circumstances

created by the Rule.

Were the government correct that inadequacy of explana-

tion is acceptable in labeling cases, contra, Citizens to

' Section 601(n)(6) of the Federal Meat Inspection Act provides

no more than that labeling mandated by the USDA shall be con-

sidered misbranded if not presented so as likely to be read and under-

stood by ordinary individuals. It does not follow from this that

Congress has authorized USDA to create circumstances which place

large subclasses of the population at deadly risk of botulism merely

lecause these consumers might not be classified as “ordinary.”

4

Preserve Overton Park v. Volpe, supra; National Nutri-

tional Foods Ass’n. v. Weinberger, 512 F.2d 688, 701 (2nd

Cir.), cert. denied, 423 U.S. 827 (1975); U. S. v. Nova

Scotia Food Products Corp., 568 F.2d 240, 251 (2nd Cir.

1977), and that labels are legislatively presumed to be

efficacious, USDA could, viewing the present situation in

its limits, without rational basis authorize the inclusion,

in a familiar appearing food, of a substance highly toxic

to all but a few consumers as long as this fact were dis-

closed on the label. But that is exactly what the govern-

ment is urging here when it insists that USDA was under

no obligation to consider whether, and explicitly to state

its conclusions and bases therefor that, ordinary American

consumers, much less illiterates and other special classes

mentioned in the Comments, would read and understand

the label of a product which appears to be entirely familiar

and hence needing no label inspection.? Until such an ex-

plicit statement is provided ‘‘in the [challenged] order...

itself’’, Burlington Truck Lines v. U. S., 571 U.S. 156,

169 (1962), that is ‘‘in the ‘Statement of the Bases and

Considerations’ filed with the adopted regulations’’, Angel

v. Butz, 487 F.2d 260, 263 (10th Cir. 1973), cert. denied,

417 U.S. 917 (1974), the court cannot conduct the review

mandated by the Administrative Procedure Act, see

Citizens to Preserve Overton Park v. Volpe, supra; Na-

tional Nutritional Foods Ass’n. v. Weinberger, supra, and

has no choice but to set the rulemaking aside.

“The government's observation that ‘the Secretary must deter-

mine what type of labeling will be effective”, Br. Op. 10, n.6, seems

meaningless against the conjunctive observations that “explicit fact-

finding [regarding labeling efficacy] is not required”, Jd. and that

the efficacy of labeling has already been legislatively determined.

Br. Op. 9. That formulation is a blueprint for arbitrary, unreview-

able conduct. It permits the agency to assert without reason or

analysis conclusions quite literally, as here, of life and death import

which, because of their presumed propriety, escape judicial review.

5

The suggestion that USDA implicitly responded to the

crucial labeling questions raised in the Comments by re-

quiring the term ‘‘Uncured’’ in the challenged labels, Br.

Op. 10, n. 6, does not rectify the shortcoming. For reasons

just given, USDA’s considerations must be, but are not

here, sufficiently explicit to permit requisite judicial

scrutiny. Of equal importance is the fact that there is

no rational support in the record for a conclusion, were it

stated, that inclusion of the term ‘‘uncured’’ would rea-

sonably protect either the special classes referred to in

the Comments or the general consuming public. Pet. 16-17.’

Il.

Post Hos Rationalizations

Cannot Justify the Rule’s Unlawful Purpose

In answer to Petitioners’ contention that the Rule was

promulgated for an unlawful purpose, Pet. 22-23, govern-

ment counsel say:

‘‘the Rule constitutes a measured response to the

articulate desire of consumers and producers for

products that they reasonably believe to be less im-

jurious to health than products readily available in the

market.’’ Br. Op. 11

*The government seemingly concedes the Rule’s vulnerability

when it acknowledges that illiterates, non-English speaking con-

suiners and those with infirm vision will not be able to differentiate

between certain label names including, for example, “hot dog” and

“uncured hot dog.”” Br. Op. 10, n. 7. Even more pertinent is the

fact that these are the very consumers who, not being able to “read”

labels prescribed by the Rule, will rely on the similarity of physical

characteristics, e.g., color and size, mandated by the Rule and

familiar packaging wrappers and logos permitted by the Rule in

reaching the mistaken conclusion that uncured products are the

traditional, cured variety.

6

The health injury involved is, according to counsel, the

supposed carcinogencity of nitrite. Br. Op. 3, 4, 5, 7, n. 5.

The court of appeals put it this way:

‘‘(T)]he agency found persuasive evidence that the

benefits of the regulation would outweigh any potential

safety problem.’’ App. 11

The problem with these characterizations of the Rule’s

purpose is that neither they nor any other mention of

cancer, carcinogencity of nitrites, comparative health risk,

or health related benefits of nitrite-free food appear in the

Rule’s statement of bases and purpose, App. 83-91. They

are at bottom nothing more than post hoc rationalizations

by counsel and the court of the Rule’s purpose which, un-

der settled law cannot be considered by this Court. See

Pet. 22, n. 13

ITI.

NEPA Has Been Disregarded

Even if, contra, Pet. 24-25, the Department’s Final Im-

pact Statement, App. 72-88, were thought to satisfy

NEPA’s requirement that the Rule’s public health im-

pact be assessed, the F'IS conclusion that the Rule

‘fis not expected to result in any increase of food

poisoning from Clostridium botulinum’’

because the spores producing that poison

‘do not generally grow at temperatures below 40°F”’,

Br. Op. 15; App. 80

is arbitrary and irrational. The crucial inquiry was wheth-

er an increased incidence rate was likely should uncured

products be handled as their traditional, cured counter-

parts now are at 70°, 80° and 90°F for prolonged periods

in the home, on picnics and camping trips, and in lunch

pails and school lockers. See Pet. 19. Contrary to the

requirements of NEPA, the FIS never addressed that

question.

~]

IV.

Conclusion

In a real sense review and reversal by this Court is the

consumer’s last hope of protection from the deadly trap

created by the Rule. Wherefore, Petitioners respectfully

request that the writ issue.

Respectfully submitted,

DonaLp P. CoLLETon

James L. Fox

Attorneys for Petitioners,

National Pork Producers Council

Charles Grassley, Thomas Hagedorn

and Steven Symms

Of Counsel:

Apramson & Fox

One East Wacker Drive

Chicago, Illinois 60601

(312) 644-8500