the only kind known to man the Secretary’s argument might be persuasive, particularly to one familiar with the niceties of frankfurter composition and production. Our difficulty is that there are other frankfurters, specifically those containing 81 1/2 percent meat and 3 1/2 percent binders and extenders; and the regulation forbids the use of the “All Meat” label on such frankfurters. We are thus confronted with the question whether there is a rational basis for the distinction in the labels that may be applied to the two types of frankfurters. If a frankfurter containing 85 percent meat may be labeled all meat, then why must a frankfurter containing 81 1/2 percent meat be denied that label? The Secretary answers in his brief that “… the ‘all meat’ label affirmatively has assisted the consumer in rapidly distinguishing such a frankfurter [the 85 percent meat frankfurter] from those which contain cereal, milk products or other ingredients which are neither meat nor processing agents essential to the manufacture of what is commonly accepted to be a frankfurter.” We are not persuaded by the Secretary’s argument.
The record discloses that in 1955 about one‐third of the total frankfurter production in this country was of the “All Meat” type, the remaining two‐thirds consisting of sausage with binders or extenders added. As of 1970, however, nearly 70 percent of the total sausage production was of the “All Meat” type. We think it plain from this that “All Meat” frankfurters are preferred by consumers. The “All Meat” label is therefore an indication that a frankfurter bearing it occupies a preferred status, or is at least considered to be in some way superior to a frankfurter not so labeled. The Secretary says that the element of superiority is the absence of extenders or binders in the “All Meat” frankfurter, and that the distinction is made plain by the “All Meat” label. Thus the issue presented by the Secretary’s argument is whether there is a reasonable basis for his conclusion that the label “All Meat” conveys to an ordinary consumer the message that a frankfurter so labeled, while containing only 85 percent meat, does not contain cereal or milk products or other binders and extenders.
Do the words “All Meat” mean to an ordinary consumer, as distinguished from an expert, that a frankfurter in a package on which these words appear contains 85 percent meat and other components, and not 81 1/2 percent meat and other components? We think the answer to the question is plain, that the words do not convey that meaning and distinction, and that the Secretary could not reasonably conclude that they do. As employed, therefore, the “All Meat” label is misleading and deceptive.
The Secretary argues that the meaning of the words “All Meat” and the calculation of their effect upon a consumer are matters for him to determine in the exercise of his expert judgment. We must disagree, for the common meaning of the words is clear and unequivocal, and we find no basis in the record for the Secretary’s conclusion that these words, in a label intended for the ordinary consumer, convey the kind of technical and esoteric message that the Secretary finds in them. Nor is the vice of the label cured by the accompanying language which identifies the processing agents contained in “All Meat” frankfurters….
The district court ordered the Secretary to discontinue the use of the “All Meat” label within six months… . We agree with this result but we think that in the interim the Secretary should develop, prescribe and submit to the district court revised labels that accurately and without deception distinguish the different types of frankfurters from each other and from competitive meats… . As so modified the judgment is Affirmed.
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QUESTIONS
1 3.3. Did the Federation of Homemakers’ Court determine whether the USDA’s regulation was beneficial? What standard did the court apply in reviewing the regulation?
2 3.4. Why dried apples and dried cherries, but raisins and prunes? Most dried fruits are named by simply adding “dried” to the common fruit name. Raisin and prunes are different because centuries ago when grapes and plums arrived shriveled up after a long shipment from France, they were identified by the French names for the fruit, which are raisin (grape) and prune (plum).
What’s in a Name? Lean Finely Textured Beef A.K.A. “Pink Slime”
“Lean finely textured beef” (LFTB) is the USDA FSIS term for the product made from the fatty scraps left after trimming cuts of meat like steaks and roasts. These trimmings are heated to a low temperature and then spun in a centrifuge to remove most of the fat. The trimmings are then treated with ammonia gas to kill pathogenic bacteria.
Should LFTB be considered “ground beef” for purposes of ingredient labeling? Should it be listed as an ingredient when added to “ground beef”? Those are the issues involved in a controversy over the labeling of LFTB.
Ground beef and hamburger typically are made from trimmings left after the larger cuts of meat are removed, so in that sense LFTB is like ground beef. The difference with LFTB is that it takes advantage of lower value scraps, those meat trimmings with such small amounts of meat that cutting off the excess fat by hand is not worthwhile. In the past, these trimmings had been removed and diverted for lower value uses, such as in animal feed and cooking oil. Thus, LFTB provides a less expensive source of lean beef protein. Although LFTB has a high protein content that enabled ground beef producers to reduce the fat percentage in their product, the nutritional content of the trimmings used to make LFTB is not the same as muscle meat. LFTB contains more serum and connective tissue proteins and less muscle proteins.24
Initially, LFTB was regulated by the USDA as a category of beef products derived from beef trimmings known as “partially defatted chopped beef” (PDCB). Although PDCB is from beef, it is not “beef” as in “ground beef.” PDCB can be added to other food products, such as “beef patty mix,” but PDCB generally must be specifically listed in the ingredient statement.25 Many things come from beef, but only select parts of the beef are considered “beef” for addition to “ground beef” and “hamburger.”
Title 9 of the Code of Federal Regulations, section 319.15 states in part:
“Partially Defatted Beef Fatty Tissue” is a beef byproduct derived from the low temperature rendering (not exceeding 120 °F.) of fresh beef fatty tissue. Such product shall have a pinkish color and a fresh odor and appearance.
While LFTB is similar to other PDCB, it has protein content closer to hand‐trimmed beef. Using this information, Beef Products, Inc. (BPI), the primary producer of LFTB, requested this product be reclassified as “fat reduced beef,” and after five years of review and study, USDA approved the request in 1991, and the product could be labeled as “lean finely textured beef (LFTB).” Two years later, USDA granted BPI permission to include LFTB in ground beef. USDA also made a determination that for ingredient labeling purposes, LFTB was “beef”; therefore, USDA did not require LFTB be labeled as a separate ingredient in ground beef.26
Title 9 of the Code of Federal Regulations, section 319.15 states in part:
“Ground beef” … shall consist of chopped fresh and/or frozen beef with or without seasoning and without the addition of beef fat as such, shall not contain more than 30 percent fat, and shall not contain added water, phosphates, binders, or extenders.
To consider LFTB as “beef” for labeling purposes, USDA had to interpret the language “fresh and/or frozen beef” as appropriately describing LFTB. The determination that LFTB was “fresh beef” arguably was inconsistent with the agency’s determination on other ingredients, such as PDCB. While LFTB is “beef” in the broad sense that any
