467 F2d 481 Chip Steak Co Inc v. Hardin

467 F.2d 481

CHIP STEAK CO., INC., et al., Appellants,
Clifford HARDIN, Secretary of Agriculture, et al., Appellees.

No. 72-1212.

United States Court of Appeals,
Ninth Circuit.

Oct. 31, 1972.
Rehearing Denied Nov. 28, 1972.

George A. McKray (argued), San Francisco, Cal., for appellants.

Leonard Schaitman (argued), Morton Hollander, Washington, D. C., James L. Browning, Jr., U. S. Atty., Brian Denton, Asst. U. S. Atty., San Francisco, Cal., Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., for appellees.

Before ELY and GOODWIN, Circuit Judges, and FERGUSON, District Judge.*


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A meat processor sought injunctive and declaratory relief in the district court against enforcement of a United States Department of Agriculture regulation which proscribes the addition of sorbic acid to processed meat products. From a summary judgment in favor of the Secretary of Agriculture, the processor appeals.


The district court decision is reported in Chip Steak Co. v. Hardin, 332 F.Supp. 1084 (N.D.Cal.1971). The district court's careful and comprehensive memorandum opinion fully states the law and the facts.


The challenged U.S.D.A. regulation, found at 9 C.F.R. Sec. 318.7(d)(2), was adopted pursuant to the Federal Meat Inspection Act of 1907, 34 Stat. 1260, as amended by the Wholesome Meat Act of 1967, Pub.L. 90-201, 81 Stat. 584, 21 U.S.C. Sec. 601, et seq. (Supp.1971). The regulation provides:


"(d) No substance may be used in or on any product if it conceals damage or inferiority or makes the product appear to be better or of greater value than it is. Therefore:


"* * *


"(2) Sorbic acid, calcium sorbate, sodium sorbate, and other salts of sorbic acid may not be used in cooked sausage or any other product * *."


Chip Steak attacks the regulation on a variety of procedural grounds. We agree with the district court that the asserted deficiencies in the department's rule-making procedure afford no basis for attacking the regulation.

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The Honorable Warren J. Ferguson, United States District Judge for the Central District of California, sitting by designation