AGRICULTURE ‑- FOOD ‑- REGULATORY POWERS ‑- BREWED COFFEE ‑- POSTING NOTICE OF ADDITIVES ‑- POWERS OF DIRECTOR OF AGRICULTURE

AGRICULTURE ‑- FOOD ‑- REGULATORY POWERS ‑- BREWED COFFEE ‑- POSTING NOTICE OF ADDITIVES ‑- POWERS OF DIRECTOR OF AGRICULTURE.

1. Brewed coffee to which flavoring and/or coloring has been added is not adulterated within the meaning of the pure food and drug law.

2. The director of agriculture does not have authority to require the posting of notices in restaurants and other service establishments that flavoring and/or coloring has been added to brewed coffee.

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                                                                   April 23, 1954

Honorable Sverre Omdahl,Director
Department of Agriculture
Old Capitol Building
Olympia, Washington                                                                                               Cite as:  AGO 53-55 No. 248

Dear Sir:

            We have your request for our opinion on the following questions:

            1. Is brewed coffee to which flavoring and coloring has been added adulterated within the meaning of RCW 69.04.220?

            2. Does the Director of Agriculture have authority to promulgate a certain regulation, requiring the posting of notices in restaurants and service establishments that flavoring or coloring has been added to coffee?

            We conclude that both questions should be answered in the negative.

                                                                     ANALYSIS

            The sudden and proportionately great increase in the price of coffee in the recent past has inspired the use of certain additives to brewed coffee commonly  [[Orig. Op. Page 2]] referred to as "coffee stretchers."  In common with most such controversies, the matter attracted the interest of relatively large groups of individuals both in support of, and in opposition to, the use of such products.  The widespread use of these products came to the attention of the Director of Agriculture, whose duty it is to execute the provisions of the pure food and drug act.  The director deemed it his duty to take certain steps to apprise the public of such use, and prepared a proposed regulation providing as follows:

            "It shall be unlawful for any person operating a business or service establishment offering food for sale to the consuming public to add or mix any substance or product for the purpose of adding flavor and/or coloring to coffee before or while in the process of brewing, provided:  that this regulation will not apply if the business or service establishment gives notice to the consuming public by posting notice in their establishment with the wording 'Flavoring and/or coloring added to coffee' with letters at least 1" high.  Said notice shall be placed in each room and so located as to be plainly visible to the consuming public."

            A public hearing was held on March 8, 1954, on the proposed promulgation of said regulation and the two legal issues set forth above were drawn.

            1.  IS THE ADDITION OF FLAVOR AND COLORING TO BREWED COFFEE ADULTERATION?

            RCW 69.04.210 to RCW 69.04.240 defines a number of acts which constitute adulteration.  The only section which could apply to the facts here involved is RCW 69.04.220, which provides:

            "A food shall be deemed to be adulterated (1) if any valuable constituent has been in whole or in part omitted or abstracted therefrom; or (2) if any substance has been substituted wholly or in part therefor; or (3) if damage or inferiority has been concealed in any manner; or (4) if any substance has been added thereto or mixed or packed therewith  [[Orig. Op. Page 3]] 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."

            There is apparently little concern over subdivisions (1) and (2), and properly so, since it is apparent that neither would apply to this situation.  The most direct attack is that such additives may be used to conceal the inferiority of the product; or, to increase its bulk or weight (by making it go further); or, to make it appear better or of greater value than it is.  Of course, any one of these effects would constitute adulteration within the definition of the statute.

            It is common knowledge that the quality of brewed coffee is measured by its flavor.  If its flavor is poor, the product is inferior.  If the addition of coloring and flavoring improves its taste; there is no concealed inferiority, the product actually is better.  Nor does it appear better than it actually is.  The proof is in the tasting.  If it tastes good, it is good, for that is itself the standard of quality.  The language referring to appearance of greater value is inapplicable.  The value of brewed coffee is fixed by the cup; not by its appearance.  We do not believe that coffee to which flavor and coloring has been added can be considered adulterated under any of these three tests.

            The other means of adulteration mentioned above is increasing its bulk or weight by addition of some foreign substance.  Brewed coffee is, of course, sold by its bulk, i.e., by the cup or pot.  If the additive were used to supplement a given weight of coffee, and thereby produce a greater number of cups of the brewed product, the adulteration is obvious.  On the other hand, if the additive is a sort of catalyst causing the bean to exude in greater volume its natural flavors, the adulteration is not so obvious; in fact, quite doubtful.  We confess to some uncertainty here.  We note, however, that in the hearing, the only evidence on this point was the testimony of a Mr. Williams who said that the product he was discussing ("Buisman's Famous Dutch Flavoring"), did not increase the coffee bulk or weight.  His testimony was not contradicted.  This is in apparent conflict with one of the known purposes of its use; i.e., to make the ground coffee produce more cups of coffee.  Nevertheless, the question is one of pure fact.  It cannot be categorically answered in the abstract.  In reliance upon the only facts available to us, we must conclude that coffee to which such products have been added is not adulterated within the meaning of any provision of the pure food and drug act.

             [[Orig. Op. Page 4]]

            2.  DOES THE DIRECTOR OF AGRICULTURE HAVE AUTHORITY TO PROMULGATE THE REGULATION?

            The proposed regulation is quoted earlier in this opinion.  It was challenged on three grounds:

            A.  The product conforms to all requirements of law.

            B.  The director has no authority to issue the regulation under the statutes.

            C.  Such a regulation, even if authorized by statute, would be unconstitutional as discriminatory and unreasonable.

            A.  The first ground stated is accurate.  There is no contention that the product itself does not conform to all requirements of the law.  The conclusion that its use does not constitute adulteration of another food would also protect it from the embargo and other penal provisions of the act.  But aside from this, the Director has an additional duty under the law which is not dependent upon a finding of adulteration, misbranding, or the fixing of an embargo.  RCW 69.04.190 provides in part:

            "Whenever in the judgment of the director 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.  * * *  In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the director shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label."

             [[Orig. Op. Page 5]]

            B.  The second objection directly raises the question of the sufficiency of the above statute to sustain the proposed regulation.

            The condition upon which the statute comes into effect involves discretion on the part of the Director.  If, in his judgment, honesty and fair dealing in the interest of the consumer will be thereby promoted, he may promulgate certain regulations.  This exercise of discretion has been vested by the legislature exclusively in him.  This office has no legal authority to review that discretion.  Even the courts will not review administrative discretion except for an abuse thereof.  SeeRobinson v. Olzendam, 38 Wn. (2d) 30, and cases cited.  Consequently, we must assume that the condition exists.

            The particular authority which is directly pertinent is the power to fix "a reasonable * * * standard of identity."  That phrase, as used in the first quoted sentence would be clearly sufficient, standing alone, to support any regulation fixing a standard of identity forany food.  But the last sentence elaborates thereon and provides that for any class of food in which optional ingredients are permitted, he shall designate those optional ingredientswhich shall be named on the label.  This gives rise to an inference that the statute was intended to relate only to packaged merchandise.  Specifically, the objection is, that we are dealing here with a class of food for which optional ingredients are permitted, and the only power the director has is to require the naming of those ingredients on the label.

            This statute is part of a uniform act.  There is a plethora of judicial decisions on the provision in question, although none in this state.  Many of the opinions contain language indicating that the power is broad enough to authorize the director to establish a standard of identity for any food.  (See 21 U.S.C.A. § 341, Annotations; Code of Federal Regulations, Food and Drugs.)  But closer study reveals that, in every case, the particular food considered was either packaged or labeled or both.  Furthermore, a careful study of the administrative rules promulgated by the Secretary under this provision (see C.F.R.,supra) reveals that the power to fix a standard of identity has always been exercised in conjunction with the power to require the naming of optional ingredients on the label.  We have found no case, nor any administrative rule, where the power to fix a standard of identity was exercised independently of the other power.  This would, to a certain extent, be expected because the Federal act only applies to articles in interstate commerce, which would probably never include foods served in restaurants.  Yet, no state court decisions have been found  [[Orig. Op. Page 6]] which would indicate that these powers could be severed and independently exercised.

            It is readily apparent that strong moral and ethical considerations support the regulation.  The use of coffee is an American tradition.  When the average American orders a cup of coffee, he expects to get the product of the bean brewed in water‑-no more.  It is immaterial, from the deception standpoint, whether or not the addition of flavor and color improves the product.  If the customer is served something different than the pure brew he ordered, he is likely to be deceived, whether harmed or not, unless advised of the variation.  Deliberate deception violates the moral senses of anyone, as well as the policy of this act.  But the question is one ofpower rather than ethics or policy.

            The rule is well settled that administrative officials have only those powers expressly granted, or those necessarily or fairly implied, which are essential to the declared objects and purposes of the act.  The purpose of this portion of the act is the prevention of merchandising deceit.  We are unable to say with certainty that the legislature intended to vest any power broader than that vested by Congress in the Secretary of Health, Education and Welfare.  (Previously the Federal Security Administrator).  It seems clear that this provision of the Federal act could apply only to packaged goods in the course of interstate commerce.  By analogy, it seems likewise clear that the identical provision in the state act could apply only to packaged goods (or goods which could be labeled) in the course of intrastate trade.  If this were not to be the rule, there should at least be some evidence in the act itself, that the legislature intended to vest a broader power.  We find no such evidence.  The power being neither expressly vested, nor necessarily implied, we must conclude that it does not exist.

            The conclusion reached above renders it unnecessary to consider the last objection relating to the constitutionality of the proposed regulation.  Although this question could arise again, in the event legislation should be passed expressly vesting in the director the power to promulgate such a rule, it would serve no purpose to consider the question at this time.

            In summary, our opinion on the two questions is as follows:

            1. Coffee to which the type of flavor and coloring discussed herein has been added, is not adulterated within the definition of the pure food and drug act.

             [[Orig. Op. Page 7]]

            2. You do not have authority to promulgate the proposed regulation quoted in this opinion.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General