sumers use oleomargaine for the same purposes as butter, and that the addition of 9,000 units of vitamin A per pound will give a vitamin A content comparable to that of butter; that present conditions of retail distribution of oleomargaine do not afford adequate refrigeration for the product, and that sodium benzoate or benzoic acid, or both, are sometimes added to aid in retarding deterioration; and that butter, salt, and artificial flavoring are sometimes used in the preparation of oleomargarine.

Our examination of the evidence adduced at the hearing before the respondent convinces us that all of the findings of fact upon which the respondent's order is based are sustained by substantial evidence. The evidence at the hearing was directed at ascertaining what ingredients had been and were being used in the preparation of oleomargarine and what ingredients consumers understood were contained in that product. The testimony amounted to a quantitative and qualitative analysis of that food product. The only substantial dispute which arose during the hearing was as to the propriety of the use of diacetyl as an optional ingredient of oleomargarine. Henry A. Lepper, a chemist in the Food and Drug Administration of the Federal Security Agency, who, for many years, had been concerned with regulatory problems in the enforcement of the Federal food laws and in the analysis of foods, testified, in substance, that in his opinion the permitted use of diacetyl in the manufacture of oleomargaine was not in the interest of honesty and fair dealing, because diacetyl produces or enhances the butter flavor and would lead uninformed consumers to believe that there were substantial quantities of butter present in oleomargarine. Mr. Lepper had previously, at the hearing, testified that the standard of identity proposed by the respondent in his notice, of hearing "would promote honesty and fair dealing in the interests of consumers because it would fulfill the consumers' conception of what the product should be, and would assure the consumer a minimum of fat commensurate with that understanding"; and that "it would also assure the consumer that dairy products in the nature of skim milk or reconstituted milk had been used in its preparation, because the consumer generally believes that to be a fact." The proposed standard of identity to which Mr. Lepper was then referring was substatially similar to that finally adopted by the responent, except that diacetyl was not an optional ingredient in the standard originally proposed, nor was benzoate of soda or benzoic acid. Mr. Lepper testified that bacterial starters are generally used to promote the growth of lactic acid bacteria in the milk ingredient; that in that way the best flavor is developed, a "flavor that is associated with dairy products," and that consumer understanding is that diary products are present in oleomargarine, and this flavor is developed by the bacteria that ordinarily develop flavor in dairy products. Mr Lepper conceded in his testimony that, without the addition of diacetyl, oleomargarine might have the same butter flavor, depending upon how rich the milk ingredient used was in the properties which give flavor. It was clearly Mr. Lepper's opinion, however, that diacetyl, if added as an ingredient, would be used to enhance the butter flavor of oleomargarine, and would or might create the impression that substantial quantities of butter had been incorporated, and would therefore make the product appear to be better or of greater value than it was; and that he did not believe that "fundamental deceptions, arising out of appearance or flavor, were correctable by any form of label statement." There was testimony on behalf of the oleomargarine industry that the only purpose of the addition of diacetyl was to overcome the deficiency of citrates in some of the milk ingredient used in the manufacture of oleomargarine and to give to the consumer a product which would, so far as possible, have a uniform flavor.

A witness who testified in the interests of the consumers of oleomargarine, expressed the opinion that a preservative such as benzoate of soda or benzoic acid might be used to conceal an unsanitary or inferior product. There was other evidence that such a product could not be improved by the addition of these preservatives, and that the only purpose that they served was to enable the consumer to obtain the product in substantially the same condition as when it left the producer's hands.

None of the petitioners appeared at the hearing except the National Cooperative Milk Producers' Federation, which, perhaps, may be regarded as having represented the interests of the other petitioners and of the butter industry generally. The Federation introduced no evidence, took no part in the examination of witnesses produced by the respondent and by the oleomargarine industry, made no suggestions of any kind at the hearing as to what

would constitute a proper standard of identity for oleomargarine, and was entirely inactive until the hearing was over, when it filed exceptions (with a supporting brief) to the findings and order which the respondent after the hearing and on April 14, 1941, gave notice that he proposed to make and which he finally did make on June 5, 1941. The exceptions were directed against the inclusion of sodium benzoate, vitamin A, diacetyl (starter distillate, citric acid, or citrates) as optional ingredients, and against the respondent's determination that his order would promote honesty and fair dealing in the interest of consumers. The Federation in its brief, submitted with its exceptions, asserted that, "since the product, oleomargarine, lends itself to fraud and deception by virtue of the very fact that the consumer has come to associate dairy products with its flavor, nothing which permits this substitute product to more nearly simulate the dairy product butter will do other, in our judgment, than aggravate its fraudulent and deceptive sale." The National Dairy Union also filed with the respondent exceptions to the proposed order, with supporting brief.

The respondent contends that the petitioners are not persons "adversely affected" by the standard of identity for oleomargarine, and that they have no "actual controversy" within the meaning of § 701 (f) (1) of the Act. The respondent points out that the provisions of his order operate solely upon the oleomargarine industry; that it does not exempt that industry from compliance with all State and Federal laws affecting its product; that it confers upon the industry no privileges which did not exist prior to the adoption of the standard, and that the order cannot adversely affect the butter industry or those engaged in it, since their competitive position is not affected by the order. The respondent also contends that, in so far as the petitioners assert that the regulation fixing the standard is not in the interest of consumers, they urge a grievance which is not their own. The respondent relies upon Interstate Commerce Commission v. Chicago, R. I. & Pac. Ry. Co., 218 U. S. 88, 109; L. Singer & Sons v. Union Pacific R. Co., 311 U. S. 295, 304, 306; Perkins v. Lukens Steel Co., 310 U. S. 113, 125; Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U. S. 118, 139-140; Alabama Power Co. v. Ickes, 302 U. S. 464, 480-485; Moffat Tunnel League v. United States, 289 U. S. 113, 119; Alexander Sprunk & Son, Inc. v. United States, 281 U. S. 249, 255-256; Edward Hines Yellow Pine Trustees v. United States, 263 U. S. 143, 148-149; Commonwealth of Massachusetts v. Mellon, 262 U. S. 447, 448; Fairchild v. Hughes, 258 U. S. 126, 129; and other cases. It is the respondent's opinion that Congress intended that the right to a review of such an order as the one under consideration should be confined to persons directly affected by the order, namely, the members of the industry concerned, consumers directly affected, and possibly suppliers of ingredients which were excluded by the standard set up. (See A. E. Staley Mfg. Co. v. Secretary of Agriculture, 7 Cir., 120 F. (2d) 258, 259-266.)

The petitioners argue, in effect, that the order licenses the oleomargarine industry to engage in unfair and unlawful competition with them, that they have a large stake in the butter industry, and that they are, therefore, persons "adversely affected" by the order. They rely upon such cases as Alton Railroad Co. v. United States, 315 U. S. 15, 18-20; Federal Communications Commission v. Sanders Brothers_Radio_Station, 309 U. S. 470, 476-477, and 642; Claiborne-Annapolis Ferry Co. v. United States, 285 U. S. 382, 390. The petitioners also contend that they are "interested persons" who were represented at the hearing before the respondent, and are to be regarded as parties to that proceeding against whom an adverse order has been entered.

The producers of butter and the producers of oleomargarine have been for many years competing in the same field, if not exactly upon the same economic plane. The petitioners believe that the order of the respondent, which standardizes the use of optional ingredients in oleomargarine which they think it should not be permitted to contain, impairs the petitioners' competitive position, adversely affects them, and is invalid.

It seems to us that the controversy between the petitioners and the respondent is an actual controversy over the lawfulness of the respondent's order. Congress did not see fit to limit the right of review to those directly affected by such an order as it might readily have done-and the case of Federal Communications Commission v. Sanders Brothers Radio Station, 309 U. S. 470, 476-477, lends substantial support to the petitioners' argument respecting their right to a review.

We have, with some misgivings, concluded to resolve our doubts with respect to our jurisdiction to review the respondent's order in favor of the petitioners.

The judgment or determination of the respondent that the order will promote honesty and fair dealing in the interest of consumers cannot, we think, be disturbed by this court. "His right to make the judgment is, of course, equivalent to a discretionary power to act, which cannot be judicially reviewed. United States v. George S. Bush & Co., Inc., 310 U. S. 371, 380." Twin City Milk Producers Ass'n v. McNutt, 8 Cir., 122 F. (2d) 564, 566. (Compare, Quaker Oats Co. v. Federal Security Administrator, 7, Cir., 129 F. (2d) 76, 81, certiorari granted, 317 U. S., 63 S. Ct. 158.) And, if the respondent's determination in that regard were subject to review by this court, we would still be of the opinion that it would have to stand. We have already shown that the standard of identity adopted was substantially the standard of identity proposed in the respondent's notice of hearing, with the exception of the optional ingredients diacetyl and benzoate of soda; that there was substantial evidence that the standard of identity proposed would promote honesty and fair dealing in the interest of consumers; and that the only real disagreement between the witnesses at the hearing was as to the propriety of the use of diacetyl as an optional ingredient. It was for the respondent to resolve this conflict in the evidence, and to determine whether diacetyl should be an optional ingredient and whether in his judgment the standard of identity with the inclusion of this ingredient would promote honesty and fair dealing in the interest of consumers. His conclusions in these regards are, we think, neither arbitrary nor capricious, and are, therefore, binding upon this court.

That leaves for consideration the questions of whether the order violates the misbranding provision and the adulteration provision of the Act.

Section 403 (c) of the Act (21 U. S. C. A. § 343 (c)) provides that a food shall be deemed misbranded "if it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word 'imitation' and, immediately thereafter, the name of the food imitated."

The petitioners, in their brief, assert as follows:

"It is quite obvious that the testimony upon which the respondent's order is supposedly based discloses that these various permitted optional ingredients are used for the sole purpose of simulating the genuine product butter. It is the duty under the law of respondent to require manufacturers of oleomargarine if they are to use these ingredients in their product to label their product in accordance with the plain mandate of Congress, namely, with the word 'imitation' together with the name of the product (butter) imitated. This the respondent did not do. His order is repugnant to the provisions of § 403 (c) of the Act and consequently void."

The answer of the respondent is that oleomargarine containing the optional ingredients referred to in the order, is not "an imitation" of butter within the meaning of § 403(c); that the mere resemblance or similarity of one food to another is insufficient to make one an "imitation" of the other; and that what § 403 (c) is directed at is preventing a spurious food being passed off as genuine. The respondent also contends that, even if some oleomargarine conforming to the standard of identity might be sold under circumstances which might possibly make it an "imitation" of butter under § 403 (c), that fact would not vitiate the standard, since the provisions of § 401, relating to the establishment of standards of identity, and the provisions of § 403 (c) requiring that imitations of foods be labeled as such, are not conflicting and are independent of each other.

Oleomargarine is a well known food product with an identity of its own, and there is nothing in the record before us, with the possible exception of the expert opinion expressed by Mr. Lepper (with which the respondent did not agree) to indicate that oleomargarine has been, or is likely to be, passed off as butter; that it is, or is likely to be, used as a deceptive imitation of butter; or that labeling requirements will not effectually protect consumers against fraud. The respondent, we think, has convincingly demonstrated in his brief that, in view of Federal and State restrictions imposed upon the sale of oleomargarine, it is improbable that it could, as a practical matter, be successfully passed off as butter. But if § 403 (c) requires that oleomargarine containing the optional ingredients specified in the standard be labeled "imitation butter," it is our opinion that the respondent's order cannot be invalidated for that reason, because we regard §403 (c) as independent of § 401.

If § 403 (c) imposed the duty upon the respondent to require all oleomargarine containing the ingredients designated in the standard as optional, to be labeled "imitation butter," that duty existed both before and after the order was made, since the order does not impair, or purport to impair, the effectiveness of § 403 (c). The order established a definition of a food product, and is not a license, to those who produce it, to violate any State or Federal labeling requirements.

Section 402 (b) (4) of the Act (21 U. S. C. A. § 342 (b) (4)) provides that a food shall be deemed to be adulterated "if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is." In order to determine whether anything has been added to a food which makes it appear "better or of greater value than it is," it is necessary to know first of all what the food is. The purpose of the respondent's order was to ascertain the ingredients of oleomargaine and to define and identify it. Under the definition which he adopted, oleomargarine is a food which contains the ingredients and optional ingredients specified in the definition and standard of identity. It is not conceivable to us that we could rule that the use of one or more of the optional ingredients would make oleomargarine an adulterated food, and at the same time be of the opinion that the standard of identity established by the order was supported by valid findings of fact and sustained by substantial evidence. We think there is no conflict between the order of the respondent and § 402 (b) (4) of the Act.

What the petitioners are really objecting to is the inclusion by the respondent, in the standard of identity established, of optional ingredients which they contend should have been excluded by him. They should have made their fight for these exclusions before the respondent, and not before this court. Upon the evidence adduced at the hearing, we are convinced that the respondent had the power to make the order which is challenged. Whether the order is right or wrong is no concern of this court, for it cannot substitute its judgment for that of the respondent. See and compare Gray v. Powell, 314 U. S. 402, 412; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F. (2d) 698, 701, affirmed 313 U. S. 146; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U. S. 573, 580-581; National Labor Relations Board v. Waterman Steamship Co., 309 U. S. 206, 226; National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U. S. 105; Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F. (2d) 903, 907; National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U. S. 318, 342.

The motion of the respondent to dismiss the original and intervening petitions is denied.

The order under review is affirmed.

5. Canned fruit. United States Cane Sugar Refiners' Association, et al v. Federal Security Administrator. Petition to the Circuit Court of Appeals for review of an order promulgating amended regulations fixing and establishing definitions and standards of identity for canned apricots, canned cherries, canned peaches and canned pears. Petition dismissed.

On May 25, 1942, the United States Cane Sugar Refiners' Association, United States Beet Sugar Association, the American Sugar Refining Company, California and Hawaiian Sugar Refining Corporation, Limited, the National Sugar Refining Company, and Savannah Sugar Refining Corporation filed in the United States Circuit Court of Appeals for the Second Circuit a petition for a judicial review of the Federal Security Administrator's order, published in the Federal Register of March 3, 1942, promulgating amended regulations fixing and establishing definitions and standards of identity for canned apricots, canned cherries, canned peaches, and canned pears.

The petitioners challenged the validity of respondent's order on the ground (1) that its permission to use dextrose and corn sirup in canned peaches, pears, apricots, and cherries and to designate the packing media as "sirup" without label declaration of dextrose and corn sirup resulted in labels that are misleading and not in terms of the common names of these ingredients, (2) that the order was not based on substantial evidence of record, and (3) that the order did not promote honesty and fair dealing in the interest of consumers.

The Government answered and filed a motion to dismiss the petition on the following grounds:

(1) That petitioners were not persons "who will be adversely affected" by the order sought to be reviewed, within the meaning of section 701 (f) (1) of the Federal Food, Drug, and Cosmetic Act;

(2) That the petition did not present a "case of actual controversy" as required by section 701 (f) (1) of the Act and Article III, Sec. 2 of the Constitution of the United States; and

(3) As to petitioner United States Beet Sugar Association and its members that it represented, that they did not reside or have their principal places of business within this circuit, as required by section 701 (f) of the Act.

The case was argued on June 10, 1943, and decided on August 27, 1943, the court dismissing the petition on the grounds that the. petitioners were not adversely affected within the meaning of section 701 (f) and that the court, therefore, had no jurisdiction to review the regulations. The court handed down the following opinion:

138 F. (2d) 116 (C. C. A. 2d)

CHASE, Circuit Judge. 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: