BROWN-FORMAN DISTILLERS CORP. v. MATHEWS Civ. A. No. 76-0042-0.
435 F.Supp. 5 (1976)
BROWN-FORMAN DISTILLERS CORP. et al., Plaintiffs, v. F. David MATHEWS, Secretary of Health, Education and Welfare, et al., Defendants.
United States District Court, W. D. Kentucky, Owensboro Division.
August 31, 1976.
Bert T. Combs, E. L. Galloway, Tarrant, Combs & Bullitt, Louisville, Ky., Charles N. Brower, White & Case, Washington, D.C., for plaintiffs.
George J. Long, U.S. Atty., Western District of Ky., Louisville, Ky., for defendants.
JAMES F. GORDON, Senior District Judge.
American government in the twentieth century has grown far beyond the initial three branches of government envisioned and established in Articles I through III of the United States Constitution. This growth has largely been the result of the rapid multiplication of government bodies called administrative agencies.
Administrative agencies oversee or regulate in the areas which have been delegated to them. Theoretically each agency has its own particular area of concern and its jurisdiction is limited to that area. Sometimes, however, the body delegating authority to the agency writes the agency's enabling act in such a manner that there is an actual or apparent overlap of jurisdiction over a particular subject matter between two agencies. Therein lies this case.
This litigation represents several questions including whether one administrative agency, the Bureau of Alcohol, Tobacco and Firearms, hereinafter BATF, has exclusive jurisdiction to regulate the labeling of alcoholic beverages or whether such labeling regulation rests concurrently with the BATF and the FDA. Amazingly this particular query has taken nearly forty years to reach the federal courts. The reason for this delay is readily apparent once the factual background concerning this case is known.
To understand fully the significance of recent events involving the parties in this lawsuit it is necessary to travel back to 1935. In that year Congress passed legislation known as the Federal Alcohol Administration Act, 27 U.S.C. § 201, et seq., hereinafter called the 1935 Act. There is no question but that this legislation extends authority to regulate labeling of alcoholic beverages to the Secretary of the Treasury, who in turn has delegated that authority to the BATF. In 1938 Congress enacted the Federal Food, Drug and Cosmetic Act, supra. Under the 1938 Act Congress granted the FDA affirmative labeling jurisdiction over "food." "Food" was defined, in part, as "articles used for . . . drink for man . . .." 21 U.S.C. § 321(f). Given the expansive definition of food the FDA believes that it has concurrent jurisdiction with the BATF to regulate the labeling of alcoholic beverages.
Recognizing an apparent potential for conflicting and redundant regulatory action over the labeling of alcoholic beverages arising from the seemingly overlapping jurisdictional grants set forth in the 1935 and 1938 Act, the FDA published on April 11, 1940 (only four months after the effective date of 21 U.S.C. § 343(i) requiring for the first time ingredient labeling of all "food"), Trade Correspondence No. 224, wherein the agency declared:
1 Toulmin, Law of Food, Drugs, and Cosmetics, Section 109 at 157 (1963).
For thirty-five years, from 1940 until 1975, the FDA never took any significant affirmative steps to regulate the labeling of alcoholic beverages. During this same period
On October 8, 1974, FDA and BATF entered into a Memorandum of Understanding confirming that BATF would continue to have the primary responsibility for the regulation of the labeling of alcoholic beverages. 39 Fed.Reg. 36127. This Memorandum of Understanding also stated that the BATF in consultation with FDA was developing comprehensive ingredient labeling regulations with respect to distilled spirits, wine and malt beverages pursuant to the 1935 Act which regulations would be in consonance with the 1938 Act and regulations promulgated thereunder. These proposed regulations with respect to ingredient labeling were published by BATF on February 11, 1975. 40 Fed.Reg. 6349-6360.
For six days BATF held public hearings with respect to the proposed ingredient labeling regulations during which the agency, in accordance with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553, considered the views of industry representatives, consumer groups and nonindustry experts, including in excess of 1000 written comments. Having extensively studied the question BATF in early November, 1975, withdrew its ingredient labeling proposals. The agency based its withdrawal on five explicit findings:
40 Fed.Reg. at 52613.
Within weeks of the BATF's decision to withdraw its notice of proposed rulemaking, the FDA acted. The FDA issued a ruling announcing that "because of [BATF's decision not to require ingredient labeling] the memorandum of understanding [with BATF] has been terminated by FDA." The notice then stated:
40 Fed.Reg. at 54455. Prior to the publication of this decision by FDA, no notice or opportunity to comment were accorded to any interested persons.
The case is now before us on cross-motions for summary judgment.
Immediately after the repeal of the Prohibition Amendment, the 18th Amendment to the United States Constitution, in 1933, by the 21st Amendment, President Roosevelt created by executive order the Federal Alcohol Control Administration, hereinafter FACA, which was to regulate the liquor industry until Congress could enact new legislation. Exec. Order No. 6474 (Dec. 4, 1933). The Supreme Court, however, held unconstitutional the National Industrial Recovery Act of 1933, 48 Stat. 195, under which the FACA had been created. Schechter Poultry Corp. v. United States,
Recognizing the absence of a regulatory body for the alcoholic beverage industry, Congress took immediate action and commenced work on legislation which eventually was signed into law on August 29, 1935, only three months after the Schechter decision.
The Department of Agriculture, of which FDA was a part, actually recommended to Congress that special legislation be enacted concerning regulation of the liquor industry. The Secretary of Agriculture stated:
Rep. of Sec. of Agric. (1934) at 85.
H.R. 8870, which was to become the 1935 Act, was reported favorably to the House by the Ways and Means Committee. It was noted by the committee that existing laws including the food and drug laws (which presumably was a reference to the Pure Food and Drug Act of 1906, 34 Stat. 768, hereinafter 1906 Act) were insufficient. H.R.Rep. No. 1542, 74th Cong. 1st Sess. at 3 (1935). The Committee insisted the new legislation must include affirmative labeling provisions. It stated:
Id. at 12.
Hence, the 1935 Act specifically was to include and did include labeling authority not only to prohibit falsity and deception, which was the extent of the labeling authority possessed by the FDA under the 1906 Act; but, the 1935 Act expanded the scope of labeling authority so that the BATF could require, among other things, the identity and quality of the product and the net contents of the package. In brief, it is patent that Congress placed in the hands of the Secretary of the Treasury and through him the BATF affirmative labeling authority over alcoholic beverages.
Does the legislative history of the 1938 Act demonstrate that Congress intended to give the FDA concurrent jurisdiction over regulating the labeling of alcoholic beverages?
S. 5, 75th Congress, was the bill which was enacted into law on June 25, 1938, under the title of the Federal Food, Drug and Cosmetic Act. As introduced the bill contained the following definition of "food":
Sec. 2(g), S. 5, reprinted in Dunn, Federal Food, Drug, and Cosmetic Act, G. E. Stechert & Co., New York (1938) at 638, sometimes hereinafter termed Dunn.
The definition of food remained unchanged when the bill was referred to the Commerce Committee. The bill also contained this statement:
This bill, as passed by the Senate on March 9, 1937, was sent to the House of Representatives where it was referred to the Committee on Interstate and Foreign Commerce. The bill was reported by the Committee, with amendments, on April 14, 1938. The amendments made by the House Committee included minor changes in the definition of "food" and in the provision concerning access to records.
The definition of "food," as enacted is:
21 U.S.C. § 321(f).
The access to records provision upon enactment stated:
21 U.S.C. § 372(c).
The House Committee's report also included the following provision concerning the scope of the word "food":
Committee on Interstate and Foreign Commerce, House of Representatives Report No. 2139, 75th Congress, 3d Session, April 14, 1938, (Dunn at 815ff, 817).
Much dispute within the parties' able briefs has centered on the remarks of Congressman Virgil Chapman, a representative from the Commonwealth of Kentucky, during hearings on what eventually became the 1938 Act. Congressman Chapman, the Chairman of the House subcommittee which held hearings on the 1938 Act, addressed the following question to the State Health Commissioner of Kentucky:
Hearings on S. 5, H.R. 6906, 8805, and 8941 before Subcom. of House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess. at 106 (1935).
During this discussion of the pending legislation Congressman Cole interjected the following comment:
Id. at 107.
Congressman Chapman's remark focuses on another important aspect of the legislative history of the 1938 Act. From 1933 until 1938 Congress worked on several bills to amend the 1906 Act. During this time Mr. Chapman led several attempts to amend the proposed bills to include a
Legislative history is only one tool by which the Court can uncover congressional intention. Another device is to review the statutory language itself. In fact review of the legislative enactments themselves is the keystone of statutory construction.
The 1935 Act, among other things, sets forth criminal sanctions for any person who sells, receives or ships "distilled spirits" or "wine" unless such alcoholic beverages are bottled, packaged and labeled pursuant to the regulations prescribed by BATF with respect to packaging, marking, branding, and labeling in addition to size and fill of container.
In 27 U.S.C. § 205(e) Congress authorized the Secretary of the Treasury to prescribe such labeling regulations:
In addition Congress in the final paragraph of 27 U.S.C. § 205(e) enacted a program requiring the Secretary of the Treasury to approve all labels which were to be affixed to bottles filled with distilled spirits and wines, if such beverages pass through interstate or foreign commerce.
Three years later Congress pursuant to the 1938 Act delegated affirmative labeling authority to the FDA. The 1938 Act makes it a misdemeanor and, in certain cases, a felony to deliver or to receive in interstate commerce any "misbranded" "food." Failure to comply with the 1938 Act authorizes the seizure of the "food."
21 U.S.C. § 321(f).
The ingredient labeling authorization explicitly appears within the 1938 Act. It states:
21 U.S.C. § 343(i).
The question now becomes: Given the statutory language found in the 1935 and 1938 Acts and the applicable legislative history, did Congress intend to grant labeling jurisdiction over alcoholic beverages exclusively to BATF or concurrently between BATF and FDA. This is a question of first impression.
We agree with the defendants that the "plain meaning" of the definition of food under the 1938 Act includes alcoholic beverages. Unfortunately, given the facts of this case the "plain meaning" of the word "food" as defined in the 1938 Act contributes little to our understanding of whether Congress intended the BATF to have exclusive jurisdiction over the labeling of alcoholic beverages or whether Congress intended BATF and FDA to have concurrent jurisdiction in that area. See Train v. Colorado Public Interest Research Group,
Undoubtedly the 1935 Act is "special" legislation designed to deal with regulating the alcoholic beverage industry. At the time that act was passed by Congress it was generally recognized that the 1906 Act was not sufficient to regulate the newly legitimized alcoholic beverage industry. The 1935 Act is directed entirely at governmental
In contrast the 1938 Act is broad in scope. Significantly, during the legislative discussions concerning what was to become the 1938 Act the subject of alcoholic beverages is rarely mentioned. When alcoholic beverages were discussed it was generally in relation to the "straight" whiskey amendments.
Congressman Chapman's remarks concerning an early draft of the 1938 Act indicates he did not believe that alcoholic beverages fell within the labeling sections of the proposed legislation.
Emphasis added. Hearings on S. 5, H.R. 6906, 8805, and 8941, Subcommittee of House Committee on Interstate and Foreign Commerce, 74th Congress, 1st Session at 106 (1935). Obviously, the congressman did not think the draft of the bill included whiskey within the misbranding (labeling) sections of the act because he thought an amendment was needed to extend the legislation to include whiskey labeling before that subject would be covered. Congressman Chapman's amendment, which was introduced as part of his "straight" whiskey fight, was defeated. The fact that Congressman Chapman's statement was made during discussions of an early draft of the 1938 Act does not materially limit its relevance because no showing was made by the defendants that the remarks would not equally have been applicable to the draft which actually became the 1938 Act.
The statutes themselves demonstrate Congress' intention to place exclusive jurisdiction over the regulation of alcoholic beverage labeling in the Secretary of the Treasury, and through him the BATF. The 1935 Act is specific legislation dealing directly with the alcoholic beverage industry. The 1938 Act is broad in scope and can be argued to apply to alcoholic beverages only because the word "food" was defined expansively.
A basic rule of statutory construction to be applied to resolve a conflict between two different enactments each of whose literal terms cover a specific subject is that "where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one . . .." Morton v. Mancari,
426 U.S. at 153, 96 S.Ct. at 1992-1993.
The defendants argue that the above-stated statutory construction device does not apply to this case. They contend:
Defendants' Rejoinder Brief at 4. (Original emphasis).
Notwithstanding the defendants' argument to the contrary there is direct conflict between the 1935 and 1938 Acts. This conflict is not likely to seem irreconcilable to the agency seeking to extend its largess into an area not previously regulated by it; however, the conflict appears to be irreconcilable to the Court and certainly to the plaintiffs, the parties being regulated.
The 1935 Act requires the Secretary of the Treasury to prohibit by regulation certain statements on labels where those statements are "likely to mislead the consumer," even though they may not be false. 27 U.S.C. § 205(e)(1) (Emphasis added). See also 27 C.F.R. 5.42(a)(1). In fact, one of the five explicit reasons set forth by the BATF in rejecting the idea of ingredient labeling for alcoholic beverages was that in certain cases ingredient labeling would be misleading. The 1938 Act, on the other hand, requires the labeling of all ingredients regardless of the fact that such labeling may be potentially misleading. Only if the FDA grants an "exemption" from its basic all-inclusive ingredient labeling requirements can the regulated party fail to list all ingredients on the product.
Another statutory conflict deals with information concerning the alcoholic content of the beverage. The 1935 Act declares that BATF shall promulgate such regulations "as will provide the consumer with adequate information as to the . . . alcoholic content thereof . . .." 27 U.S.C. § 205(e)(2). No similar requirement is found in the 1938 Act. 21 U.S.C. § 343(e)(2) merely requires a statement of the total contents of the package. 27 U.S.C. § 205(e)(2) also specifically requires that statements of the alcoholic content of malt beverages are prohibited unless required by state law. In the case of wines statements of alcoholic content may be required only for wines containing more than 14% of alcohol by volume. 27 U.S.C. § 205(e)(2). No comparable provisions exist in the 1938 Act.
Albeit FDA as a regulator can argue that such statutory conflicts are not irreconcilable, it cannot be denied that the labeling requirements of the 1935 and 1938 Acts, as construed by the BATF and FDA through promulgated regulations, subject the plaintiffs to "duplication and inconsistent standards." United States v. National Ass'n of Securities Dealers,
Of course, the first regulatory consistence is that which gives rise to this lawsuit. The BATF after extensive hearings on the question of whether there should be ingredient labeling of alcoholic beverages withdrew its proposal to require such labeling. The FDA then announced that it would require ingredient labeling, as mandated by the 1938 Act.
Both statutes require that a statement of the net contents of the package appear on the label, 21 U.S.C. § 343(e)(2), 27 U.S.C. § 205(e)(2), but the regulations promulgated by the BATF and FDA as to this requirement are in conflict. FDA requires that the label state the volume of liquid measured at 68 deg. F., 21 C.F.R. 1.8(b)(2)(iii), whereas BATF requires measurement at 60 deg. F., 27 C.F.R. 5.11. Next, FDA allows the declaration of quantity to appear blown
There are also conflicting regulations concerning the identity of manufacturers, bottlers and importers. These differences stem from the conflicting requirements of the Acts. Compare 27 U.S.C. § 205(e)(2) with 21 U.S.C. § 343(e)(1). These statutory conflicts are magnified because of the regulations. The FDA requires that the "declaration of the name of the manufacturer, packer, or distributor shall be deemed to be satisfied, in the case of a corporation, only by the actual corporate name. . . ." 21 C.F.R. 1.8a(b) (Emphasis added). BATF requires under its regulations that "the name (or trade name)" of the bottler, 27 C.F.R. 5.36(a)(1), or distiller, 27 C.F.R. 5.36(a)(2), or rectifier, 27 C.F.R. 5.36(a)(3), must appear on the label. (Emphasis supplied). In addition, the regulations differ as to the details that must be given about the address of the producer. FDA requires the street address, city, state and zip code be given, 21 C.F.R. 1.8a(d), while BATF requires "post office address; except that the street address may be omitted," 27 C.F.R. 5.36(c).
The two regulatory agencies also differ on the labeling of "imitations." The 1938 Act provides that a food is misbranded "if it is an imitation of another food, unless its label bears in type and uniform size and prominence the word `imitation' and, immediately thereafter, the name of the food imitated." 21 U.S.C. § 343(c). The FDA has decided the term "imitation" means a food which "is a substitute for and resembles another food but is nutritionally inferior to that food." 21 C.F.R. 1.8(e)(1). The 1935 Act, conversely, confers broad discretion in BATF to determine whether alcoholic beverages must be labeled as imitations. 27 U.S.C. § 205(e)(2).
The FDA attempts to demonstrate that these conflicts in the statutory mandate given to the two agencies as well as the conflicting regulations promulgated by FDA and BATF are not significant for the two agencies can work out a compromise by adopting a Memorandum of Understanding. Such a memorandum would state that, "except for the matter of ingredient labeling, FDA will accept labels approved by BATF as being in compliance with the FDC Act." Defendant Schmidt's Affidavit at 3. This argument is unpersuasive for several reasons. First, while the Court agrees that agencies should attempt to work out theoretical conflicts between themselves we do not believe that it is legally proper for an agency to ignore its statutory obligations, as construed in promulgated regulations. Thus, if we accepted Commissioner Schmidt's approach to this problem we would be authorizing the FDA to blind itself to the regulations it does not wish to see but to view squarely the regulation it wishes to enforce. Such is an untenable position. Second, such a memorandum as envisioned by Commissioner Schmidt would ostensibly be similar to the agreement, also termed a memorandum of understanding, signed by BATF and FDA on October 8, 1974, concerning ingredient labeling of alcoholic beverages. As such it would not be binding on either agency and could, therefore, be rescinded. We have already seen that FDA has a quick "trigger finger" when it comes to rescinding inter-agency agreements which no longer suit its purpose. See 40 Fed.Reg. 54455 (FDA rescission of the October 8, 1974, Memorandum of Understanding with BATF). Hence, such a Memorandum of Understanding, as proposed by Commissioner Schmidt, has little lasting value. Finally, the Commissioner's proposed agreement underlines the irreconcilable conflict that exists between BATF and FDA on the question of ingredient labeling. By excluding ingredient labeling from the scope of the proposed memorandum
It is patent, therefore, that the 1935 and 1938 Acts when coupled with the regulations promulgated thereunder do establish conflicting regulatory requirements concerning the labeling of alcoholic beverages.
Thus, it is our opinion that Congress intended the 1935 Act, which contains a specific and comprehensive provision dealing with labeling of alcoholic beverages, to govern the labeling of such products to the exclusion of the misbranding provisions of the 1938 Act. Given the above-stated conflicting statutory and regulatory framework it is clear that had we held the labeling jurisdiction of the FDA to be concurrent with that of the BATF, the alcoholic beverage industry would be "subjected to duplicative and inconsistent [labeling] standards." Securities Dealers, supra at 735, 95 S.Ct. at 2450. As the Supreme Court declared in Securities Dealers: "This is hardly a result that Congress would have mandated." Id. In sum, we hold that it was the implied intention of the Congress to grant exclusive labeling jurisdiction over alcoholic beverages to the BATF.
In so holding we specifically refuse to accept the defendants' contention that Congress' failure to exclude specifically the labeling of alcoholic beverages from the provisions of the 1938 Act, under 21 U.S.C. 392(a) or 392(b), was a dispositive indication of Congress' intention to include labeling authority over alcoholic beverages within the jurisdiction of the FDA. Although such an explicit statement would have been simple for Congress to include within the Act, its failure to do so is not dispositive given the fact that (1) legislative history, especially Congressman Chapman's remarks concerning an early draft of the 1938 Act, demonstrates that Congress did not believe the 1938 legislation included labeling authority over alcoholic beverages; and, (2) three years prior to the 1938 Act Congress had previously passed legislation related directly to alcoholic beverages which included a specific and comprehensive section on labeling of such beverages, an act which was not by specific language repealed, modified or limited in any respect by the 1938 Act. To accept the defendants' argument we would have to believe that Congress intended to inflict upon the alcoholic beverage industry conflicting labeling requirements. We refuse to make such an assumption.
Our determination that labeling jurisdiction over alcoholic beverages rests exclusively within the BATF is supported by actions of FDA and BATF during the last thirty-eight years.
Although the FDA had, pursuant to the 1906 Act, general jurisdiction to prevent deceptive labeling of foods, such authority, as applied to alcoholic beverages was implicitly repealed by Congress when it enacted the 1935 Act, an act which placed comprehensive authority to regulate all areas of the labeling of alcoholic beverages under the auspices of the Secretary of the Treasury. Hence, from 1935 until the enactment of the 1938 Act the BATF (or its predecessor) undoubtedly possessed exclusive labeling jurisdiction over alcoholic beverages.
On April 11, 1940, the FDA stated its position on the labeling of alcoholic beverages. In FDA Trade Correspondence No. 224 the agency wrote that alcoholic beverages "are subject to the (1938) Act," yet, the FDA would leave the regulation of the labeling of such beverages to what is now the BATF. The FDA continued to hold this position until November, 1975. In short for nearly forty years the FDA never took any significant affirmative steps to regulate the labeling of alcoholic beverages. In contrast BATF (or its predecessor) has been actively involved in comprehensively regulating all aspects of alcoholic beverage labeling during this same time period. 27 C.F.R. Parts 4, 5 and 7.
We cannot ignore the fact that for nearly forty years the FDA was content on merely standing on its assertion that it had concurrent labeling jurisdiction over alcoholic beverages while the BATF was thoroughly engaged in regulating the labeling of alcoholic beverages. The fact that FDA
Importantly, the FDA was actively involved during this thirty-eight year period with promulgating detailed labeling regulations with respect to various kinds of food, 21 C.F.R. Part 1, but not for alcoholic beverages. In addition, the FDA did actively enforce the adulteration provisions of the 1935 Act with regard to alcoholic beverages. See e.g. United States v. Commonwealth Brewing Co., (D.Mass.1945), reported in Kleinfeld and Dunn, Federal Food, Drug and Cosmetic Act 1938-1949 at 310. Hence, the actions of the FDA during the last thirty-eight years support the conclusion that while Congress intended the FDA to have the authority to enforce the adulteration provisions of the 1938 Act with respect to alcoholic beverages it did not intend the FDA to have concurrent jurisdiction with BATF concerning the labeling of alcoholic beverages.
It is also important for the Court to point out that the labeling of alcoholic beverages is currently being extensively regulated by BATF. See 27 C.F.R. Parts 4, 5 and 7; See also footnote 3, supra. Significantly, BATF spent six days in public hearings listening to many representatives from the alcoholic beverage industry, consumer groups and other interested persons on the precise issue of ingredient labeling of alcoholic beverages. In addition BATF reviewed over 1,000 written comments on the question of ingredient labeling. Having extensively reviewed this subject BATF decided to withdraw its proposed regulation concerning ingredient labeling. The agency based its decision on five explicitly stated reasons: (1) the cost of ingredient labeling for alcoholic beverages (to the industry and ultimately to the consumer) "would be excessive in relation to the benefit received;" (2) the actual content of alcoholic beverages already is "extensively regulated;" (3) the labeling of ingredients would be "of little value and, in certain cases, even misleading;" (4) such requirements might hinder current international trade negotiations; and (5) "ingredient labeling is supported by only a small segment of the public." 40 Fed.Reg. 52513. What these facts demonstrate is that BATF has over the years been diligent in regulating the labeling of alcoholic beverages; and, this diligence was also demonstrated in the manner in which BATF considered the question of ingredient labeling for alcoholic beverages.
We find it difficult to believe that Congress in its wisdom would create two administrative agencies under two acts, which give rise to two conflicting regulatory schemes, to oversee one subject matter, alcoholic beverage labeling, especially when the agency which all concede is primarily responsible for regulating the alcoholic beverage industry has been doing an efficient and effective job for over forty years.
We believe it was Congress' intention to place exclusive jurisdiction in BATF with respect to regulating the labeling of alcoholic beverages. Ergo, we shall sustain plaintiffs' motion for summary judgment. Having granted the plaintiffs' motion for the above-stated reason we need not decide the remaining issues presented to us by the plaintiffs.
A separate judgment shall this day be entered in conformance with this Memorandum Opinion.
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