Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
Appellees sued to enjoin appellant, as United States attorney, from enforcing against them certain regulations of the Secretary of Agriculture promulgated under supposed authority of the McNary-Mapes Amendment*fn1 of July 8, 1930 (21 USCA § 10), to section 8 of the United States Food and Drug Act of June 30, 1906. The appeal is from a decree awarding appellees a permanent injunction as prayed.
Appellees had been for some years in the business of processing, canning, and marketing dry, ripe peas, which were first soaked in hot water to soften them and to swell them to their original shape and color, and this process being following by further steps. Under the regulations of the Department of Agriculture formerly in force containers of the product designed to move in interstate or foreign commerce were required to be plainly labeled with the words "Prepared From Dry Peas."
After the adoption of the McNary-Mapes Amendment, the Secretary of Agriculture promulgated regulations for standardizing and labeling canned peas,*fn2 requiring the cans containing appellees' product designed for interstate or foreign commerce to bear in conspicuous lettering the legend "Below U.S. Standard. Low Quality But Not Illegal. Soaked Dry Peas." Appellees were duly notified to so ship no such product unless so labeled. Declining to comply, they were threatened with prosecution and confiscation of the product undertaken to be so shipped.
There is no contention that dry peas are of themselves to any degree deleterious or unfit for human food, nor that appellees' process for canning them causes the slightest impairment of the product. It is likewise apparent that such labeling of the container would in a short time practically destroy the industry of canning dry peas designed for interstate or foreign commerce. This is not only apparent, but has been practically the result when this label was placed upon the cans. The evidence shows that it is so well recognized in the trade that such a label would destroy trade in the product that the label is generally known in the trade as "crepe label."
The production and distribution of canned dry or ripe peas is an industry not less lawful or commendable than the production and distribution of the immature peas, which the regulations prescribe as the standard for canned peas. The canning of ripe peas is not like the other a seasonal industry. The peas when dry through ripening are gathered, and will keep indefinitely in that state before canning; whereas the immature peas must be gathered and processed at once when they reach the suitable stage of maturity, after which delay of even a very few days will overdevelop them and render them unfit for the prescribed standard.
The regulations specify certain tests to be applied to give assurance that the immature peas have not passed beyond the degree of ripeness essential to constitute them "standard canned peas."
When the peas become hard and dry through the natural process of ripening they cannot, of course, comply with the standard thus fixed for canned peas. Processing restores their fullness and color, and renders them soft and edible. But they are a product essentially different from that of the canned unripe peas which are made the standard. Different processes are necessary. The long soaking in hot water, cooling and reheating of the dry peas would disintegrate and ruin the immature variety. The properties of the two products are very different. In the mature peas there is more of starch and less of sugar than in the immature peas, and the mature have more of nutriment and food value than the immature. There is, of course, a difference in the taste, most persons probably preferring the immature peas, although, as was testified, this is a matter of the taste of the individual.
The canned dry peas sell in the market for considerably less than the immature product, which may be accounted for by the more general preference for the taste and consistency of the immature product, as well as the fact that the dry peas may be kept indefinitely and readily shipped long distances to canneries and may be canned at leisure, while the immature peas must be processed without delay and in canneries conveniently located with reference to the place where the peas are grown.
All this indicates that, notwithstanding the same vines produce the immature and the full-ripened peas, for the purposes of canning the two are products as essentially different as if taken from radically different plants, and were known by different names. As articles of commerce we think they must be regarded as in separate classes, each having its own properties and peculiarities. There are doubtless good, bad, and indifferent grades of dry peas as well as of immature peas; and to say that canned ripe peas are an inferior grade of canned immature peas is, in our judgment, at once illogical, unreasonable, and unfair.
To be sure, a customer desiring the immature canned peas should not have the dry peas imposed upon him, and vice versa. The object of such legislation and the regulations thereunder is to guard against deception of the public. Statutes and regulations adopted for that end are salutary and should be supported. The right of Congress to adopt such legislation for regulating interstate and foreign commerce, and to empower the making of suitable and reasonable regulations thereunder, must generally be conceded.
But, in view of what has been said, we cannot regard as "reasonable" the regulation which fixes immature, unripe peas as the standard for canned peas generally, requiring the dry peas product to be labeled in a manner which would convey to the public the impression that ...