administrative body. Federal Trade Comm'n v. Education Society, 302 U. S. 112, 117; Gray v. Powell, 314 U. S. 402, 412; Labor Board v. Link Belt Co., 311 U. S. 584, 597; see Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 141, 144. These considerations are especially appropriate where the review is of regulations of general application adopted by an administrative agency under its rule-making power in carrying out the policy of a statute with whose enforcement it is charged. Compare Houston v. St. Louis Independent Packing Co., 249 U. S. 479, 487; Opp Cotton Mills v. Administrator, 312 U. S. 126, 156. Section 401 calls for the exercise of the "judgment of the Administrator". That judgment, is based on substantial evidence of record, and if within statutory and constitutional limitations, is controlling even though the reviewing court might on the same record have arrived at a different conclusion.

None of the testimony which we have detailed can be said to be speculative or conjectural unless it be the conclusion of numerous witnesses, adopted by the Administrator, that the labeling and marketing of vitamin-enriched foods, not conforming to any standards of identity, tend to confuse and mislead consumers. The exercise of the administrative rule-making power necessarily looks to the future. The statute requires the Administrator to adopt standards of identity which in his judgment "will" promote honesty and fair dealing in the interest of consumers. Acting within his statutory authority he is required to establish standards which will guard against the probable future effects of present trends. Taking into account the evidence of public demand for vitaminenriched foods, their increasing sale, their variable vitamin composition and dietary value, and the general lack of consumer knowledge of such values, there was sufficient evidence of "rational probative force" (see Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229, 230), to support the Administrator's judgment that, in the absence of appropriate standards of identity, consumer confusion would ensue. Federal Trade Commissin v. Raladam Co., 283 U. S. 643, 651; Federal Trade Commission v. Raladam Co., 316 U. S. 149, 151, 152; Pacific States Box Co. v. White, 296 U. S. 176, 181. Compare McLean v. Fleming, 96 U. S. 245, 251, 253-4, 255.

Respondent insists, as the court below held, that the consumer confusion found by the Administrator affords no basis for his conclusion that the standards of identity adopted by the Administrator will promote honesty and fair dealing. But this is tantamount to saying, despite the Administrator's findings to the contrary, either that in the circumstances of this case there could be no such consumer confusion or that the confusion could not be deemed to facilitate unfair dealing contrary to the interest of consumers. For reasons already indicated we think that the evidence of the desire of consumers to purchase vitamin-enriched foods, their general ignorance of the composition and value of the vitamin content of those foods, and their consequent inability to guard against the purchase of products of inferior or unsuitable vitamin content, sufficiently supports the Administrator's conclusions.

We have recognized that purchasers under such conditions are peculiarly susceptible to dishonest and unfair marketing practices. In United States v. Carolene Products Co., 304 U. S. 144, 149, 150, we upheld the constitutionality of a statute prohibiting the sale of "filled milk"-a condensed milk product from which the vitamin content had been extracted-although honestly labeled and not in itself deleterious. Decision was rested on the ground that Congress could reasonably conclude that the use of the product as a milk substitute deprives consumers of vitamins requisite for health and "facilitates fraud on the public" by "making fraudulent distribution easy and protection of the consumer difficult."

Both the text and legislative history of the present statute plainly show that its purpose was not confined to a requirement of truthful and informative labeling. False and misleading labeling had been prohibited by the Pure Food and Drugs Act of 1906. But it was found that such a prohibition was inadequate to protect the consumer from "economic adulteration", by which less expensive ingredients were substituted, or the proportion of more expensive ingredients diminished, so as to make the product, although not in itself

mittee and one of the House conferees. In proposing it he said that it was "the same as the court review section in the Federal Trade Commission Act with only such changes as are necessary to adapt it to the pending bill', and he referred to "similar" provisions in the Bituminous Coal Commission Act, National Labor Relations Act, Securities Exchange Act, and Federal Communications Act. 83 Cong. Rec., 7892, 7777-8.

deleterious, inferior to that which the consumer expected to receive when purchasing a product with the name under which it was sold. Sen. Rep. No. 493, 73d Cong., 2d Sess., p. 10; Sen. Rep. No. 361, 74th Cong., 1st Sess., p. 10. The remedy chosen was not a requirement of informative labeling. Rather it was the purpose to authorize the Administrator to promulgate definitions and standards of identity "under which the integrity of food products can be effectively maintained" (H. R. Rep. 2139, 75th Cong., 3d Sess., p. 2; H. R. Rep. 2755, 74th Cong., 2d Sess., p. 4), and to require informative labeling only where no such standard had been promulgated, where the food did not purport to comply with a standard, or where the regulations permitted optional ingredients and required their mention on the label. §§ 403 (g), 403 (i); see Sen. Rep. No. 361, 74th Cong., 1st Sess., p. 12; Sen. Rep. No. 493, 73d Cong., 2d Sess., pp. 11-12.

The provisions for standards of identity thus reflect a recognition by Congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other. We cannot say that such a standard of identity, designed to eliminate a source of confusion to purchasers-which otherwise would be likely to facilitate unfair dealing and make protection of the consumer difficult-will not "promote honesty and fair dealing" within the meaning of the statute.

Respondent's final and most vigorous attack on the regulations is that they fail to establish reasonable definitions and standards of identity, as § 401 requires, in that they prohibit the marketing, under the name "farina", of a wholesome and honestly labeled product consisting of farina with vitamin D added, and that they prevent the addition of vitamin D to products marketed as "enriched farina" unless accompanied by the other prescribed vitamin ingredients which do not co-act with or have any dietary relationship to vitamin D. Stated in another form, the argument is that it is unreasonable to prohibit the addition of farina to vitamin D as an optional ingredient while permitting its addition as an optional ingredient to enriched farina, to the detriment of respondent's business.

Since the definition of identity of a vitamin-treated food, marketed under its common or usual name, involves the inclusion of some vitamin_ingredients and the exclusion of others, the Administrator necessarily has a large range of choice in determining what may be included and what excluded. It is not necessarily a valid objection to his choice that another could reasonably have been made. The judicial is not to be substituted for the legislative judgment. It is enough that the Administrator has acted within the statutory bounds of his authority, and that his choice among possible alternative standards adapted to the statutory end is one which a rational person could have made. Houston v. St. Louis Independent Packing Co., supra, 487.

The evidence discloses that it is well known that the milling process for producing flours and farinas removes from the wheat a substantial part of its health-giving vitamin contents, which are concededly essential to the maintenance of health, and that many consumers desire to purchase wheat products which have been enriched by the restoration of some of the original vitamin content of the wheat. In fixing definitions and standards of identity in conformity with the statutory purpose the Administrator was thus confronted with two related problems. One was the choice of a standard which would appropriately identify unenriched wheat products which had long been on the market. The other was the selection of a standard for enriched wheat products which would both assure to consumers of vitamin-enriched products some of the benefits to health which they sought, and protect them from exploitation through the marketing of vitamin-enriched foods of whose dietary value they were ignorant. In finding the solution the Administrator could take into account the facts that whole wheat is a natural and common source of the valuable dietary ingredients which he prescribed for enriched farina; that wheat is not a source of vitamin D; that milk, a common article of diet, is a satisfactory source of an assimilable form of calcium; that the 7 A Message of the President, dated March 22, 1935, urging passage of the bill and particularly of the standard of identity provision, pointed out that "The various qualities of goods require a kind of discrimination which is not at the command of consumers. They are likely to confuse outward appearances with inward integrity. In such a situation as has grown up through our rising level of living and our multiplication of goods, consumers are prevented from choosing intelligently and producers are handicapped in any attempt to maintain higher standards." H. R. Rep. No. 2755, 74th Cong., 2d Sess., pp. 1-2. The Chairman [Chief] of the Food and Drug Administration testified before the Senate Committee that the provision for standards of identity which would reflect "the expectation of the buyer" was "one of the most important provisions of the Act." Hearings before a Subcommittee of the Senate Committee on Commerce on S. 1944, Dec. 7 and 8, 1933, pp. 35, 36.

principal function of vitamin D is to aid in the metabolism of calcium; and that milk enriched with vitamin D was already on the market.

We cannot say that the Administrator made an unreasonable choice of standards when he adopted one which defined the familiar farina of commerce without permitting addition of vitamin enrichment, and at the same time prescribed for "enriched farina" the restoration of those vitamins which had been removed from the whole wheat by milling, and allowed the optional addition of vitamin D, commonly found in milk but not present in wheat. Consumers who buy farina will have no reason to believe that it is enriched Those who buy enriched farina are assured of receiving a wheat product containing those vitamins naturally present in wheat, and, if so stated on the label, an additional vitamin D, not found in wheat.

The standards of reasonableness to which the Administrator's action must conform are to be found in the terms of the Act construed and applied in the light of its purpose. Its declared purpose is the administrative promulgation of standards of both identity and quality in the interest of consumers. Those standards are to be prescribed and applied, so far as is practicable, to food under its common or usual name, and the regulations adopted after a hearing must have the support of substantial evidence. We must reject at the outset the argument earnestly pressed upon us that the statute does not contemplate a regulation excluding a wholesome and beneficial ingredient from the definition and standard of identity of a food. 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. As we have seen, the legislative history of the statute manifests the purpose of Congress to substitute, for informative labeling, standards of identity of a food, sold under a common or usual name, so as to give to consumers who purchase it under that name assurance that they will get what they may reasonably expect to receive. In many instances, like the present, that purpose could be achieved only if the definition of identity specified the number, names and proportions of ingredients, however wholesome other combinations might be. The statute accomplished that purpose by authorizing the Administrator to adopt a definition of identity by prescribing some ingredients, including some which are optional, and excluding others, and by requiring the designation on the label of the optional ingredients permitted.

Respondent speaks of the high cost of vitamin B1 ($700 per pound), but there was evidence that the cost of adding to flour the minute quantities of the four ingredients required for enriched farina would be about 75 cents per barrel, and respondent concedes that the cost to it may be but a fraction of a cent per pound. The record is otherwise silent as to the probable effect of the increased cost on the marketing of respondent's product. On this record it does not appear that the increased cost has any substantial bearing on the reasonableness of the regulation.

We conclude that the Administrator did not depart from statutory requirements in choosing these standards of identity for the purpose of promoting fair dealing in the interest of consumers, that the standards which he selected are adapted to that end, and that they are adequately supported by findings and evidence.

Reversed.

Mr. Justice MURPHY and Mr. Justice RUTLEDGE took no part in the consideration or decision of this case.

Mr. Justice ROBERTS is of opinion that the judgment should be affirmed for the reasons stated by the Circuit Court of Appeals, 129 F. 2d 76.

"

8 The standard of identity provision was repeatedly stated in the Committee reports to have been patterned on the Butter Standards Act of 1923, 42 Stat. 1500. Sen. Rep. No. 361, 74th Cong., 1st Sess., p. 10; Sen. Rep. No. 646, 74th Cong., 1st Sess., p. 4; Sen. Rep. No. 493, 73d Cong., 2nd Sess., p. 10; H. R. Rep. No. 2139, 75th Cong., 3rd Sess., p. 5. That Act was entitled "An Act to define butter and provide a standard therefor", and establish a legislative definition and standard for butter. The Chairman of the House Committee which reported it said "The only things you can put into [butter] are salt, casein, the butter fat, and water. That is what the definition provides.' Hearings, House Committee on Agriculture on H. R. 12053, 67th Cong., 2nd Sess., p. 25; see also H. R. Rep. No. 1141, 67th Cong., 2nd Sess., p. 4. Also referred to as models for the standards to be promulgated under the present act were the advisory standards then being promulgated by the Pure Food and Drug Administration under the authority given by the Appropriation Act of June 3, 1902, 32 Stat. 286, 296, and subsequent acts. Hearing before a Subcommittee of the Senate Committee on Commerce on S. 1944, Dec. 7 and 8, 1933, p. 36. (Statement of Walter G. Campbell, Chief of Food and Drug Administration, Dept. of Agriculture.) The announcements promulgating these standards stated that they were "so framed as to exclude substances not mentioned in the definition." E. g., Dept. of Agriculture, Food and Drug Administration, Service and Regulatory Announcement No. 2, Revision 4 (1933) p. 1; id., Rev. 5 (1936) p. 1.

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4. Oleomargarine. Land O'Lakes Creameries, Inc., and Twin City Milk Producers Association v. Federal Security Administrator. National Cooperative Milk Producers' Federation and National Dairy Union, interveners. Petition to review, reverse, and set aside order fixing and establishing a definition and standard of identity for oleomargarine. Motion on behalf of the Government to dismiss the original and intervening petitions. Decision of Circuit Court of Appeals denying motion to dismiss petitions but ordering the regulations in controversy affirmed.

On August 30, 1941, Land O'Lakes Creameries, Inc., Minneapolis, Minn., and Twin City Milk Producers Association, St. Paul, Minn., filed a petition in the United States Circuit Court of Appeals for the Eighth Circuit for review of an order of the Federal Security Administrator dated June 5, 1941, fixing and establishing a definition and standard of identity for oleomargaine.

The National Dairy Union, Washington, D. C., and the National Cooperative Milk Producers' Federation, Washington, D. C., were permitted by the court to file intervening petitions.

On February 23, 1942, the cause was argued and submitted to the court on respondent's motion to dismiss the original petition and the petition of interveners. On April 2, 1942, the court ordered the respondent's motion vacated and the parties given leave again to present and submit such motion for disposition in connection with and at the time of the regular hearing upon the merits of the case. It further ordered that the application previously made by the National Cotton Council of America, Fort Worth, Tex., for leave to appear as amicus curiae be granted only to the extent of allowing it to file a brief as amicus curiae in support of the respondent's motion to dismiss and on the merits of the case.

On January 21, 1943, the court ordered that the motion to dismiss the original and intervening petitions be denied but that the order of the Federal Security Administrator be affirmed, handing down the following opinion:

132 F. (2d) 653 (C. C. A. 8th)

SANBORN, Circuit Judge. This is a petition to review an order of the respondent1 made on June 5, 1941, promulgating regulations fixing and establishing a definition and standard of identity for oleomargarine under the Federal Food, Drug, and Cosmetic Act of 1938. (§ 401, 52 Stat. 1046, 21 U. S. C. A. § 341; 8701, 52 Stat. 1055, 21 U. S. C. A. §371; Reorganization Act of 1939, 53 Stat. 561, 5 U. S. C. Supp. V, §§ 133 et seq., (see note, 5 U. S. C. A. following § 132, concerning §§ 133-133r); Reorganization Plan No. IV,2 5 Fed. Reg. 2421, 54 Stat. 1234, 5 U. S. C. A. following § 133t, 54 Stat. 231, 5 U. S. C. A. § 133u.)

The petitioners are cooperative corporations engaged in the marketing of butter and milk. The interveners are similar organizations engaged in furthering the interests of the dairy and butter industry. Since the petitioners and the interveners seek the same relief, they will be collectively referred to as "petitioners."

The petitioners assert that the order is invalid because it contravenes $$ 403 (c) and 402 (b) (4) of the Federal Food, Drug, and Cosmetic Act (§§ 343 (c) and 342 (b) (4), 21 U. S. C. A.), which sections relate to the misbranding and to the adulteration of foods, and because there is no substantial evidentiary support for the respondent's determination that his order promotes honesty and fair dealing in the interest of consumers.

By a motion to dismiss the petition and the intervening petitions, the respondent has challenged the right of the petitioners to maintain this proceeding.

1 The order was made by Watson B. Miller, as Acting Administrator of the Federal Security Agency, but, for convenience, will be referred to as though made by the respondent. 2 Sec. 12 of Reorganization Plan No. IV transferred the Administration of the Federal Food, Drug, and Cosmetic Act from the Secretary of Agriculture to the Federal Security Administrator.

The questions to be determined are, broadly, whether the petitioners can invoke a review by this court of the challenged order, and whether, if they are entitled to a review, the order is invalid for any of the reasons advanced by them.

Section 401 of the Federal Food, Drug, and Cosmetic Act provides that: "Whenever in the judgment of the Secretary (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 ***.3 In prescribing a definition and standard of identity for any food or class of foods in which optional ingredients are permitted, the Secretary (Administrator) shall, for the purpose of promoting honesty and fair dealing in the interests of consumers, designate the optional ingredients which shall be named on the label. ***"

Section 701 (e) of the Act provides that the Administrator "shall hold a public hearing upon a proposal to issue, amend, or repeal any regulation contemplated by" Section 401 of the Act; that at the hearing "any interested person" may be heard in person or by his representative; that, as soon as practicable after completion of the hearing, the Administrator shall by order make public his action or his decision not to act; and that his order shall be based only on substantial evidence of record at the hearing and shall set forth the detailed findings of fact on which the order is based.

Subsection (f) of Section 701 of the Act provides that "in a case of actual controversy as to the validity of any order" under subsection (e) of Section 701, "any person who will be adversely affected by such order if placed in effect" may, within ninety days after its issuance, file a petition with the Circuit Court of Appeals of the United States for the Circuit in which he resides or has his principal place of business "for a judicial review of such order"; that "the court shall have jurisdiction to affirm the order, or to set it aside in whole or in part, temporarily or permanently"; that "if the order of the Secretary (Administrator) refuses to issue, amend, or repeal a regulation and such order is not in accordance with law, the court shall by its judgment order the Secretary (Administrator) to take action, with respect to such regulation, in accordance with law"; and that "the findings of the Secretary (Administrator) as to the facts, if supported by substantial evidence, shall be conclusive." Subsection (f) of Section 701 also provides that "The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law."

The challenged order establishing a definition and standard of identity for oleomargaine was made after a hearing held upon due notice. The order contains detailed findings of fact and a determination that the standard "would promote honesty and fair dealing in the interest of consumers." The standard of identity established by the order states that oleomargarine is a plastic food prepared from animal fat or vegetable fat or oil, or a combination of both animal and vegetable fat, which is intimately mixed with milk ingredients. The standard includes as optional ingredients:

"(5) Artificial coloring.

"(6) Sodium benzoate, or benzoic acid, or a combination of these, in a quantity not to exceed 0.1 percent of the weight of the finished product.

"(7) Vitamin A * * * in such quantity that the finished oleomargarine contains not less than 9,000 United States Pharmacopoeia units of Vitamin A per pound.

"(8) The artificial flavoring diacetyl added as such, or as starter distillate, or produced during the preparation of the product as a result of the addition of citric acid or harmless citrates."

The standard requires that if artificial coloring or diacetyl, or benzoate of soda, or vitamin A is used in oleomargarine, the label must disclose the fact. The findings of fact of the respondent show that diacetyl is an artificial flavoring produced in oleomargarine by the action of certain harmless bacterial starters, and that diacetyl is also added to oleomargarine as an additional ingredient to enhance the flavor of the finished product; that some con

3 Certain foods, including butter, are not subject to the authority granted the Administrator to establish definitions and standards of identity.