Flemming v. Florida Citrus Exch.

PETITIONER:Flemming
RESPONDENT:Florida Citrus Exch.
LOCATION:Fargo, North Dakota

DOCKET NO.: 27
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 358 US 153 (1958)
ARGUED: Nov 17, 1958
DECIDED: Dec 15, 1958

Facts of the case

Question

  • Oral Argument – November 17, 1958 (Part 2)
  • Audio Transcription for Oral Argument – November 17, 1958 (Part 2) in Flemming v. Florida Citrus Exch.

    Audio Transcription for Oral Argument – November 17, 1958 (Part 1) in Flemming v. Florida Citrus Exch.

    Earl Warren:

    Number 27, Arthur Flemming, Secretary of Health, Education and Welfare, Petitioner, versus Florida Citrus Exchange, Frank R. Schell, et al.

    Mr. Goodrich, you may proceed.

    William W. Goodrich:

    Mr. Chief Justice, may it please the Court.

    This case is concerned with the problem of poisonous coal-tar colors in the nation’s foods.

    Congress has provided that the Secretary of Health, Education and Welfare shall promulgate regulation providing for the listing of coal-tar colors that are harmless and suitable for use in foods and for the certification of batches of such colors with or without harmless — I mean, without harmless diluent.

    These regulations are to be promulgated after public proceedings on the basis of evidence and are subject to judicial review in the United States Courts of Appeals.

    In 1939, after a hearing, the color FD&C Red 32 was placed on the list for unrestricted use in foods, drugs and cosmetics.

    In 1947 to 1950, there developed certain scientific and congressional unrest over the possible toxicity of a number of the coal-tar colors, particularly the oil-soluble colors.

    So, the Food and Drug Administration of the Department of Health, Education and Welfare undertook a new scientific appraisal of the toxic potential of these colors.

    Study was initiated in 1951 and continued until 1953.

    The method of studying the colors was to feed them in small amounts to test animals, rats and dog, which would be — could be kept under a controlled environment, their feed and other circumstances watched.

    They could be observed during their lifetime, sacrificed in autopsy at the end of the experiment.

    When the experiment was over, the Department frankly called the industry representatives and — and gave it the result saying that in the Department’s opinion, the colors have proved to be toxic and not harmless.

    A hearing was scheduled held in 1954.

    Hearing lasted only a day.

    The sole scientific evidence was presented by the United States Government by one witness, a Dr. Vos.

    He testified that the color was fed at various levels to rats and to dogs.

    At 2% in the diet of rats killed all the rats within a week.

    At 1%, all the rats were dead in 12 days at a 0.5% in 21 days.

    The lower levels were fed down to a thousand parts per million which is a tenth of 1% in the diet, and at the lowest level fed there were distinct injuries to the animals when they were all toxic, the injuries being to heart, liver, spleen and to the muscular dystrophy activities of the body.

    Dogs fed at somewhat lower levels, 400 parts and 100 parts per million.

    At 400 parts, all — all the dogs involved died.

    At 100 parts, one of four dogs sickened and died.

    The least toxic of the three colors involved was the only one that had been involved in a human episode of poisoning.

    Orange 1, it had been involved in an acute poisoning and the symptom which it produced was diarrhea, the objective symptom it being the same symptom produced in the test animal.

    Felix Frankfurter:

    Mr. Goodrich.

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    I could appreciate your details more if you would tell us to what purpose do you submit them.

    William W. Goodrich:

    I’m submitting them for — to the purpose of showing that the color through scientific evidence was shown to be not a harmless one, but a toxic one.

    And on this undisputed evidence, the Secretary so found and the Court of Appeals for the Second Circuit as well as for the Fifth Circuit upheld that fairly.

    Felix Frankfurter:

    Must we — is it — is it open to us to decide whether the scientific proof established the conclusion?

    William W. Goodrich:

    I think not, sir, but my opponents do argue that.

    I think since the findings of part not harmlessness have been sustained in both circuits.

    That — that finding is binding here, but my opponents do argue that point, so I was briefly covering the facts.

    There was, as anticipated here, no controversy about whether the color itself was a toxic color.

    Indeed, the Court of Appeals for the Second Circuit having a review by the entire industry sustained the whole order.

    However, the Florida and Texas floors pressed for a use of this color at limit — for this limited purpose of coloring the Texas and Florida oranges orange and argued that in this special use, the color could be used as a harmless coal-tar color.

    The idea of restricted use was not pressed at the original hearing, but was brought up on rehearing after the initial findings had been made and a few days before the case went to the Court of Appeals in New York.

    The Secretary refused to open the hearing to take evidence on this for two reasons.

    First, that there was no evidence of record showing the foods in which the color had been used in addition to oranges.

    And second, there was no evidence on which a safe level of feeding to man could be established because there was no safe level for the rats or dogs.

    William J. Brennan, Jr.:

    Where did the Court of Appeals in the Second Circuit get that to — to figure that (Inaudible)

    William W. Goodrich:

    The 5000 oranges, sir?

    William J. Brennan, Jr.:

    That you have to drink 5000 gallons of oranges a day in order to hurt you.

    William W. Goodrich:

    That comes from an analysis by a Dr. Gerwe which is outside the record.

    It’s based on a direct transposition of the amount of color that killed the rats.

    Now, our answer to that is that it served no purpose to draw a comparison with a — an amount of toxic material that killed the rats.

    What we are concerned with is an amount that could be safely taken.

    And on this record, no such level has been established since the lowest amount federal, 100 parts per million killed the test dog.

    So we start and basic to our argument is, the point that no safe level of feeding has yet been established even for the test animals.

    Now, the Court of Appeals in New Orleans did and defined that Red 32 could and must be safely tolerated on oranges alone.

    It supported this not by evidence in the record but by the fact that Secretary Folsom and Commissioner Larrick had testified on proposed temporary legislation to the effect that they had no positive evidence at that time, that Red 32 on oranges alone would poison man.

    At the same time, they pointed out to the Congress that neither was there a safe level of feeding for the test animals.

    They simply proposed to the Congress that the industry be allowed a three-year period which expires on March 1st of this year in order to hopefully develop a nontoxic color and failing that, to further explore the toxicity of Red 32 so that the matter might be taken back to the Congress and authority obtained for fixing a safe level.

    Now, the Court of Appeals for the Fifth Circuit decided this case as if it concerned oranges and oranges alone, but plainly, the principle which applies to oranges must also apply to all your margin and to any other color or any other food in which one of these colors is economically needed.

    The Fifth Circuit did not decide the case on the basis of the statutory provision accorded to the Court.

    They did not decide that the color was harmless.

    They decided that harm, it should be read in a relative sense and that led them into the preceding paragraph under which Congress authorized the establishment of safe tolerances for added poisonous and added deleterious substances required in the production of foods.

    In the case of such a — an added poison, Congress authorized the Secretary to establish safe tolerances taking into account the extent to which the color was required and all other factors in order that the total load of the poison in a variety of foods would not injure man.

    In the Fifth Circuit, the Court said to the Secretary that he could not supplant his 1939 finding of harmlessness until he was prepared to show that color added oranges themselves would be dangerous to the health of man.

    William W. Goodrich:

    Chief Judge Hutcheson dissented calling this, what it so plainly was, judicial legislation, dictated more by the needs of the industry than by a fair consideration of either the law or the facts.

    Now, on this record, there can be no question but what Red 32 itself is not a harmless color.

    It could not be classified as anything but a toxic color and both Circuits sustained the finding to that extent.

    Harmless, you mean in the sense at which it’s wholly and indisputably innocuous (Inaudible)

    William W. Goodrich:

    I hate to go — I hesitate to go wholly and indisputably.

    There could of course be some abuses.

    But harmless to me means a nonpoisonous substance.

    This product, this color was fed at levels toxicologically significant.

    The toxicologist who gave the undisputed evidence said that he used harmless in a pharmacological sense, meaning that he compared it with other known toxics.

    Now, my opponents point out that water and salt could be abused.

    Of course, they could, but that would not make them a harmful substance nor would a small amount of cyanide or — in the Red 32, make it a harmless substance.

    We think, and we will develop that in our argument that Congress itself considered that color should be without adverse physiological effect.

    That’s what they meant when they said harmless.

    The committees were told that that was a system that had been in effect and the Committee report show that it was the intention of the Congress to provide innocuous colors for use in food which could then be used in any amount by the manufacturer to achieve any tint or hue he wished without any hazard whatever to health.

    Felix Frankfurter:

    Mr. Goodrich.

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    I remember vividly the Second Chief of the Bureau of Chemistry that it then called Dr. Osburg saying that harmless and poisonous, very dangerous concepts to use because so normally harmless an ingredient of food as salt, they become toxic depending upon the dose.

    Thinking as a chemist, I’m not talking about statutory construction, you agree — agree with that, don’t you?

    William W. Goodrich:

    Yes, certainly, sir.

    Felix Frankfurter:

    So, that the problem here is not whether this is abstractly harmless or — or not sufficient.

    William W. Goodrich:

    No, sir.

    If the question here is whether these colors have such a low order of toxicity that they can be permitted in the nations’ diet for unrestricted use with no hazard whatsoever.

    Felix Frankfurter:

    In light of the statutory (Voice Overlap) —

    William W. Goodrich:

    In light of the —

    Felix Frankfurter:

    — which is applicable.

    William W. Goodrich:

    Yes, sir.

    In light of —

    Felix Frankfurter:

    That the real issue is —

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    — plus whatever weight is to be given with the findings of the Secretary.

    William W. Goodrich:

    That’s what I conceive to be the issue.

    Now, the Court of Appeals for the Fifth Circuit conceived a different issue.

    That is that harmless should be used to mean relatively harmless.

    And when you construed harmless to mean relatively harmless, that meant you could go to the other provision, 406 (a), which authorizes the Secretary to tolerate added poisonous and deleterious substances.

    Now, I agree with you that these concepts, theoretically, are difficult to apply but we have them in the statutory setting, fully explained by the administrative officials going back, as you point out, Dr. Osburg’s time.

    Dr. (Inaudible) developed this system before or where it took off and although the Department was urged in 1907 to permit the use of colors that were harmless under the conditions of use, that scheme was rejected, the very first regulation that ever was put out which I’ll refer to in a bulletin in our brief was that only harmless color should be permitted and after reviewing the entire scientific background throughout the world, as well as all the foreign laws, it was concluded that only harmless colors would be permitted.

    Now, that system came forward into 1938.

    They developed, of course, some difficulties with it because the word harmless was not in the Act of 1906.

    Instead, Congress provided that a food would be deemed to be adulterated if it bears or contains any added poisonous or added deleterious substance which may render the food injurious to health.

    Now, at the Court of Appeals for the Seventh Circuit in 1923 held that the Department could not prevent the use of a coal-tar color in a food, although it contained some arsenic because the arsenic was not present in large amount to make the food itself dangerous.

    That was recognized by the Congress in 1933, very first memorandum sent out by Senator Copeland pointing this out as a weakness in the law that the Department could not prevent the use of toxic coal-tar colors unless it could prove that the color itself made each particular food injurious to health.

    Now, when we turn to the plain language of the statute, we find the word harmless used in contrast with the preceding Section 406 (a).

    406 (a) says that food shall be deemed to be adulterated if it bears or contains any added poisonous or added deleterious substance, unless the substance is required in production or unavoidable in good manufacturing practice, in which case the Department was authorized to establish (Inaudible).

    Then Paragraph (b) of the very same section says that the Secretary shall promulgate regulation, providing for the listing and certification of harmless coal-tar colors.

    Now, this difference in language was neither inadvertent nor meaningless and certainly in the setting in which it appeared.

    It meant precisely what it says.

    The statutory plan for colors is one in which the Department is authorized to exercise their laboratory type control.

    It is enabled under this system to protect the public health by simply withholding its stamp of approval from a color which is not totally harmless for use in food and thereby, assure the food manufacturer that he can use the color in any amount without being concerned about its possible toxicity.

    Both the color industry and indeed the food industry have so understood this plan of control for a great many years.

    At the hearing, the color industry testified that it had no evidence, whatever, on what foods use what color or what amount of food use what color.

    This was regarded by the industry as wholly unimportant because they believe the colors to be innocuous.

    Had there had been any suspicion, otherwise, they would have taken some steps to accumulate data and to exercise precautions against unsafe levels of usage in food.

    If there be any doubt, whatever, about the plain meaning of the statute, in this setting in which it appears, both the administrative background and the legislative history which I’ve reviewed briefly support this.

    This voluntary system of control established by Dr. Wiley and Dr. Hesse (ph) in 1906 continued up until the Wood case.

    The weakness in the law was pointed out by Senator Copeland, the principal spokesman at the time of the legislative history of the Act of 1938.

    Now, this law was in Congress for five years.

    This Court itself has pointed out that the sponsors, the draftsmen and the congressional committees all had an intelligent understanding of the many provisions here.

    Mr. (Inaudible) explained in just these words that the existing system was, “under this procedure, those colors which were demonstrated to be without adverse physiological effect in which from a technical standpoint are suitable for use in foods were admitted to certification.”

    The plan was to assure that the colors used would be nontoxic and free of deleterious ingredients.

    At one time in the development of this law, an effort was made by the citrus growers to enact a special provision which would have allowed them to continue coloring of citrus “by means harmless to the consumer,” and to exempt the coloring from label declaration.

    William W. Goodrich:

    This was not adopted and in its — and instead we come far with the existing provisions.

    Throughout this entire legislative history, the color provisions, the provisions relating to added poisonous and added deleterious substances were discussed separately.

    They were to deal with two related but different problems and they developed different controller systems.

    For colors, a laboratory certification, the Secretary’s stamp of approval on the color that it was indeed harmless and could be used without restraint.

    For added poisonous and deleterious substances, the enactment of precise tolerances, taking into account the entire load of the poison in a variety of food as well as related pharmacologically and chemically related substances.

    Potter Stewart:

    Mr. Goodrich.

    William W. Goodrich:

    Yes, sir.

    Potter Stewart:

    I don’t mean to interrupt your — the course of your argument but straighten me out in my thinking.

    Would you — would you tell us what — and where does Section 402 (c) — 402 (c) that provides all that section fit into this, —

    William W. Goodrich:

    All right.

    Potter Stewart:

    — appearing on page 3 of your brief?

    William W. Goodrich:

    402 (c), Your Honor, is the adulteration provision.

    Potter Stewart:

    Yes.

    I’m talking about —

    William W. Goodrich:

    It — it —

    Potter Stewart:

    — the proviso in it.

    William W. Goodrich:

    The proviso — the first proviso in my brief was the one enacted in 1938 to continue the Red — to continue the colors which had been in use on the list for certification until an application for certification could be acted on.

    That was a transitional thing in order not to disrupt the area of coloring.

    I do agree with my opponents that — that indicates a congressional desire that coloring be continued but it does not indicate a congressional desire that coloring be continued with a poisonous coal-tar dye.

    Indeed, the sponsors of the proviso assured the Congress that the color itself was absolutely harmless and it was so regarded at that time.

    Potter Stewart:

    So now, there is an expressed mention of Red 32, is there not?

    William W. Goodrich:

    That is the new proviso.

    Potter Stewart:

    Yes.

    William W. Goodrich:

    That was the — that was the law enacted about three years ago which expires on March 1.

    Potter Stewart:

    But it’s in effect now?

    William W. Goodrich:

    Yes, sir.

    It’s in effect now and will expire within a very short term.

    Potter Stewart:

    Is there —

    William W. Goodrich:

    That —

    Potter Stewart:

    — any question or has any question arise as to whether or not we have a justiciable controversy here and deal with this provision?

    William W. Goodrich:

    Yes, we raised that in our petition for certiorari and assured the Court that this was not being more than a stay of enforcement of the order which expires March 1.

    The Secretary, of course, could stay it with — and the Congress stated would be, this does not change anything, particularly since it is temporary.

    The order will become fully effective on March 1, 1959.

    And meanwhile —

    Potter Stewart:

    (Voice Overlap) — as of now, there’s expressed statutory permission to use Red 32, is there not?

    William W. Goodrich:

    Until March 1, 1959, yes, sir.

    Potter Stewart:

    And —

    William W. Goodrich:

    There is an addition there, I might —

    William O. Douglas:

    (Inaudible)

    Potter Stewart:

    Excuse me.

    William O. Douglas:

    (Inaudible)

    William W. Goodrich:

    There is an addition to that, a judgment by the Fifth Circuit, which says that legislation was altogether unnecessary and has no effect, whatever.

    The judgment we’re attacking was one which continuously used a Red 32 and (Inaudible) beyond the March 1, 1959 that the Court held that that legislation served no purpose other than to provide the evidentiary basis on which it promulgated the rule for itself.

    To put it this way, it’s a — who decided this case in that favor, the judgment (Inaudible) and effective from March 1, 1959.

    William W. Goodrich:

    Yes.

    Yes, sir.

    It would — the color would continue in oranges until March 1, 1959.

    (Inaudible) we held that harmless meant harmless (Inaudible) therefore we gave no certification, the color could not be used.

    Now, (Inaudible) the proviso would permit use of the color though uncertified until March.

    William W. Goodrich:

    Correct.

    And after that, our decision would by then take effect.

    William W. Goodrich:

    Yes.

    We — we consider it —

    Potter Stewart:

    Providing the Congress hasn’t done anything in the meantime.

    William W. Goodrich:

    Provided, yes, sir.

    We considered — considered of course the idea of trying to hold this case but under the judicial review provision, review must be taken within 90 days or not at all.

    The orange growers could not safely sit back and wait until the expiration of the three-year period and then seek judicial review because they were bound by the 90-day period.

    If we looked at the temporary legislation as a stay of the enforcement of the order, no changes made as you’ll note in 402 (c), the adulteration phase.

    It simply says that the Secretary may not enforce that adulteration provision against certain Texas and Florida oranges prior to March 1, 1959.

    Felix Frankfurter:

    May I ask whether the — in view of the suggestion of Justice Stewart that provided Congress doesn’t do anything, does the industry have to do something?

    Felix Frankfurter:

    Does it have to get it — can both the department and the industry await the cut off day in March to see whether anything happens, whether or not the open structure of the statute should then begin to operate.

    Or, first, some action be taken by the industry in regard to the use and non-use for the future?

    William W. Goodrich:

    If no step —

    Felix Frankfurter:

    Now, that’s my question from (Inaudible)

    William W. Goodrich:

    If no steps are taken, I think I understand sir.

    If no steps are taken, come March 1, they will be without a color.

    They have taken steps to obtain legislation on a more permanent basis.

    The legislation was not enacted, nevertheless.

    Felix Frankfurter:

    (Inaudible) I believe, they had in legislation but must be beforehand they — can they assume — must — must it take some steps to adjust themselves?

    William W. Goodrich:

    Certainly, they must, sir.

    Certainly they must.

    Felix Frankfurter:

    When?

    William W. Goodrich:

    If they wish to continue this color which they claim as an economic necessity, and I do not deny that it is a useful coloring material for oranges to make them more attractive in the marketplace.

    If they want to do something about that, they must, either, win this case and continue the judgment which they have in the Fifth Circuit giving them a color on a permanent basis, or they must get some legislative relief.

    Now, we think the judgment of the Fifth Circuit binds us to continue the certification of this color indefinitely on oranges until we are prepared to prove affirmatively that color added oranges will poison people.

    Charles E. Whittaker:

    This also binds you as I understand to prescribe safe standards of use which the findings say the Second Circuit make impossible.

    William W. Goodrich:

    Get back —

    Charles E. Whittaker:

    Is that correct?

    William W. Goodrich:

    Yes, sir.

    It does.

    It’s very — there’s peculiarity there though.

    It — while the Court says that we are to reconsider the matter and establish a safe tar, it also tells us that we cannot supplant the findings of the 1939 findings unless and until we’re prepared to prove that the color itself will make the oranges dangerous.

    On page 186 of the — of the record is the crux of the Court’s order right after the quote, “Unless there is evidence that in the amount used and in the manner used on oranges colored with Red 32 are unsafe for human consumption, the 1939 finding should not be supplanted by a contrary ruling by which such use is prohibited.”

    And in the last sentence on page 1 — 187 — I beg your pardon — the last sentence on page 187, it says, “The Secretary may consider whether this color on oranges is safe and harmless, as harmless as construed in this opinion, which means the food is harmless and not the color.”

    Felix Frankfurter:

    My question is this.

    That maybe —

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    — more specific, I’m directing my — my question towards the problem of movement.

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    Now, in a manner of speaking these cases as it were, present the — a moot question up to March 1st, is it, March 31st?

    William W. Goodrich:

    March 1, 1959, sir.

    Felix Frankfurter:

    March — up to that date moot in a sense, loosely speaking.

    Is that right?

    I’m not talking technically —

    William W. Goodrich:

    (Voice Overlap) —

    Felix Frankfurter:

    — but up to that time — there — there’s a stay.

    William W. Goodrich:

    There’s a stay, yes.

    Felix Frankfurter:

    Therefore.

    William W. Goodrich:

    Yes, I’ll agree to that.

    Felix Frankfurter:

    Now, what I want to know is this, directing myself to the question of the mootness.

    Granting that — granting that that when, March 1st would be the time for the Department to raise this problem, what I want to know is whether the Department on the one hand and the industry on the other cannot wait until March 1st without disadvantages, either the Department or the industry in case the case should ultimately be decided one way or the other because either on the one hand, some administrative steps would have to be taken for enforcement or on the other, some industrial steps or possibly these steps couldn’t be — couldn’t come into — jump into being on March 2nd.

    William W. Goodrich:

    The steps should have been in — underway some years ago.

    As Congress in this very legislation said it would take three years to provide the factual basis for the same topics.

    They gave the industry a three-year stay for that purpose and the scientific study to either find a nontoxic color or to approve the exact toxic potential of this one is one is one that cannot be done overnight.

    It takes three years as the committees pointed out, but that three years is almost up now.

    Felix Frankfurter:

    So, that if it goes as the case goes against them, they would have to get going, to get what relief they can other than by legislation —

    William W. Goodrich:

    I —

    Felix Frankfurter:

    — by approving the matter before the Department.

    William W. Goodrich:

    I would hope, sir that they (Voice Overlap) —

    Felix Frankfurter:

    Conversely — conversely, if the case goes against you, how do that leave the Department so far as not waiting until March 1st to get our ruling.

    William W. Goodrich:

    The case goes against us.

    We must immediately set in the work motion.

    Additional scientific studies, which will require three years and a very substantial sum of money to find out whether Red 32 on oranges are safe or not safe.

    Felix Frankfurter:

    So that —

    William W. Goodrich:

    So we —

    Felix Frankfurter:

    — speaking in the usual sense of mootness, this isn’t a matter of indifference.

    William W. Goodrich:

    No, sir.

    Felix Frankfurter:

    The study until March 1st.

    William W. Goodrich:

    This is indeed that.

    Felix Frankfurter:

    And therefore, there is no proper basis for mootness as I understand that doctrine.

    William W. Goodrich:

    That’s right.

    This — this order has positive effect now and has had throughout despite the legislation because the three-year period was chosen to accommodate the necessary adjustment that would have to be made.

    Now, as I pointed out, the Fifth Circuit did not decide this case on the ground that Red 32 was a harmless coal-tar color.

    On the contrary, they held that the Secretary’s finding that it was a poison was well supported by the evidence.

    They turn instead to the provisions of Section 406 (a) dealing with added poisonous and added deleterious substances.

    We think this provision is wholly inapplicable for the reasons I’ve reviewed above that in the — going by the plain language, the structure of the statute it simply applies to a different subject.

    But if we look — if we should decide, if the Court should decide the 406 (a) have some applicability, we believe that we can demonstrate positive that it — that it — that there — there are no facts on which safe colors could be established.

    Now, 406 (a) was designed to tighten your controls over poisons in foods, not to loosen it.

    Under this Court’s decision in Lexington Mill & Elevator in 3 — in 232 U.S., this Court had given very comprehensive meaning to the Food and Drugs Act of 1906.

    It had held that any food which bore — bears or contains any added poisonous or added deleterious substance which may render the food injurious to health was an adulterated food.

    The Court held it may render the food injurious to health, meant any possibility of injuring any segment of the public, the strong and the weak, the old and young, the well and the sick.

    But as strong as that decision was, it enabled the Department, only to deal with one food at a time.

    If you had one food with a level of poison just below the danger level and another food with the same poison just below the danger level and both foods were eaten together, the consumer would get a toxic amount.

    Now, this weakness was pointed out to the Congress by Mr. (Inaudible) and Senator Copeland and Congress on the Department via Section 406 (a) with the power to deal with a common poison in a variety of foods.

    The solution was a flat prohibition against all added poisonous and added deleterious substances, unless, they were required in production.

    It was enough that the substance itself was a part of this.

    The Department was not required to show that in a particular food, it would not be a dangerous amount.

    Charles E. Whittaker:

    (Inaudible)

    William W. Goodrich:

    Yes, sir.

    Charles E. Whittaker:

    Mr. Goodrich, what do you understand is meant by the phrase “required in production” from practical sense?

    William W. Goodrich:

    By “required in production”, I’d go back to the language of years in explaining it, a chemical without which a crop could not be brought to maturity in the case of oranges.

    Charles E. Whittaker:

    Such as insecticides, —

    William W. Goodrich:

    Yes, sir.

    Charles E. Whittaker:

    — spraying and the light?

    William W. Goodrich:

    That was precisely the example given by the Congress.

    Now, since the 1938 Act, Congress has dealt more specifically with insecticide or residue, but the precise example before the Congress on “required in production” was arsenic, lead arsenate sprays necessary to bring fruits and vegetables to maturity.

    Now, “required in production”, as we read it, is used here in a setting of an exemption or an exception to a blanket rule of exclusion.

    It should be read to carry out the evident purpose of Congress and not give it a broader meaning such as the Fifth Circuit to cover a post-harvest treatment in —

    Charles E. Whittaker:

    Which — which you say is not required in production but required in attractive marketing.

    William W. Goodrich:

    Yes, sir.

    William W. Goodrich:

    That is — I draw a distinction there.

    Now, if the Court’s decision which I’ve cited on, required says that it is to be construed in the setting in which it’s to — is used, that is, to in one statute, it has one meaning and another necessarily another.

    Here, required in production was a necessary exception to make way for the sprays but not to open the nation’s food to an unlimited number of poisonous and deleterious substances.

    We think once these oranges have been produced and taken into the packing house for polishing and to be made more attractive, production is not involved in the sense of the 406 (a) provisions.

    The Court in the Fifth Circuit added to “required in production” the words, “for market”, “required in production for market” in order to open up this, the way for the post-harvest treatment.

    Now, second, we say that there are no facts on which — for safe colors for Red 32 can be established.

    Facts I reviewed show that at the lowest level fed to the test animals, injury was definitely caused.

    My opponents say that there are two reasons why that is not so.

    First, that there’s been some Canadian work done with rats, it’s reproduced actually in the Schell’s brief.

    Canada, however, followed our example, and took these colors completely off the list.

    I don’t feel it necessary for me to argue the factual implications of the Canadian work.Second, and this is the crux of their position.

    They say that since the Secretary and since Mr. Larrick told the Congressional committees considering this three-year stay that we had no evidence at this time of injury to man and we thought the possibility of evident of — of injury to man was slight.

    They stepped from that to the next point that that conclusively proves the safety of Red 32 on orange.

    We think it does not — we — maybe this color is safe on oranges alone, but that fact has not yet been established.

    Apparently, the owners bring up the Food Additives Amendment adopted on — finally signed on September 6 of this year after our initial brief was passed.

    Charles E. Whittaker:

    (Inaudible)

    William W. Goodrich:

    I’m sorry.

    Charles E. Whittaker:

    Do you say that (Inaudible)

    William W. Goodrich:

    It has on oranges.

    It has —

    Charles E. Whittaker:

    (Inaudible) or is it argued?

    William W. Goodrich:

    I think it’s upon the producer.

    The whole drive of this statute is to take the risk out of use of poisonous substances in food.

    We, having put the color on the list in 1939, obviously had the burden to go forward to prove that it was not harmless throughout the whole — the entire food supply, but for a special use like this.

    The risk is on the — on the producer to prove safety.

    Otherwise, the public is used as a test animal until the three-year work is done.

    We have a practical question here of protection of the public health as well as reading the statute.

    Now, as I look at — in — in different record, the record of uncertainty on whether this product with that color added oranges is safe, I think the law requires that the benefit of the doubt be given to the public and not to the colors and that’s why we think the burden is upon them.

    Felix Frankfurter:

    How many commodities utilize this color?

    William W. Goodrich:

    Your Honor, no one knew at the hearing.

    William W. Goodrich:

    There was testimony at the hearing from American Cyanamid Company, the producer of this color that they had voluntarily limited the color to oranges alone.

    They took it completely off the market except for this one use.

    William O. Douglas:

    There’s a rather long list in the Second Circuit’s opinion.

    William W. Goodrich:

    Yes.

    Yes, they were, Your Honor.

    Now that list came out of the certified industry committee list on their motion to reopen hearing.

    You’ll recall — I said that at the hearing, the witness testified, he had no evidence at all about what food it was used in or in what amount.

    He — he — these colors having been put on the market made available to manufacturers with a stamp, “certified U.S. color.”

    They could use them in any amount.

    Felix Frankfurter:

    But you said a minute ago, to — talking to my self, you’ve put out this color.

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    And you say that other people put out the color?

    If they were restricted as to oranges to use in oranges, why isn’t there any restriction that’s governing?

    William W. Goodrich:

    There’s no — no way to enforce that voluntary restriction aside from this temporary legislation.

    It — it would be a certified color and being a certified color, it could be used in any food and if — if a certified color was used in food, it would not be adulterated.

    Felix Frankfurter:

    My question though is this, elicited by Justice Whittaker inquiring where the burden lay because if in fact it is used, (Inaudible) that it is used —

    William W. Goodrich:

    It is used on oranges, sir.

    Felix Frankfurter:

    Yes, on oranges, but another — another thing but —

    William W. Goodrich:

    The only showing in the record is that it was used in cookies and cakes at a level about 43 but —

    Felix Frankfurter:

    So, then it would put a burden on the — on the Department to have — to establish the consequences of use upon each commodity of each food, products on which it is used.

    William W. Goodrich:

    Oh, yes.

    That’s — that’s a great danger of this case.

    I think that we just cannot look at this case as involving oranges alone because the rule of oranges must be the rule of a soda pop, frankfurters, any other commodity that requires color.

    And if it economically requires one and the only color available is a poisonous one, under the Fifth Circuit literally can be used.

    Felix Frankfurter:

    I don’t understand the remarks the Cynamid Company restricted as to oranges.

    What does that mean?

    William W. Goodrich:

    They simply voluntarily withheld it from the market for all (Voice Overlap) —

    Felix Frankfurter:

    Except to orange fruits.

    Well then, how did it get into the market?

    If they withheld it from the market.

    Felix Frankfurter:

    I don’t understand that.

    I’m stupid that I don’t understand.

    William W. Goodrich:

    That point is not fully explained how they could — undertook to control that.

    As a factual matter, I’m informed that they control it by having a single customer.

    I believe, Mr. Peterson, you can correct me if I’m wrong on this, of a food machinery company which has the control of the application, there’s a color — two color added on.

    This was a voluntary thing and was at the hearing considered pretty much for stopgap measure until a nontoxic color could be developed.

    Everyone wishes for that, hope for it.

    I’m sure my opponents do.

    But we’re — the issue here is whether a clear law written by Congress to tell the administrative agencies how to carry out its will, should be given an unusual meaning because the present economic needs of this agriculture commodity.

    Hugo L. Black:

    Does the record show whether this color is used on all citrus fruit from every part of the country?

    William W. Goodrich:

    No, it does not, Your Honor.

    It shows, however, that the color here is used on both Texas and Florida oranges and there’s one item in the record which shows that the California — I believe the Arizona growers proposed to use the color.

    Now, a great number of California oranges do not need the coloring to make the attractiveness that sells in the marketplace, but I’m to understand from one of the letters in the record that the color is needed by the Arizona people.

    Hugo L. Black:

    You mean that the record shows that all Florida oranges have these coloring?

    William W. Goodrich:

    The record —

    Hugo L. Black:

    No Florida growers use it?

    William W. Goodrich:

    No, sir.

    The record showed nothing on that, sir.

    That was not an issue at the hearing.

    Since the hearing closed, my opponents have brought into the record, evidence showing and I believe 59% during the last year, Florida oranges weren’t colored.

    Now, as — as I understand their position, the Florida orange at the beginning of the season is green while it’s ripe.

    It — it ripens before the skin changes.

    They color it that time.

    Again, during the early spring when the green comes under the trees, the oranges tend to regreen themselves and at that time, they use the color, but —

    Hugo L. Black:

    Did the record show whether or not there’s competition between Florida orange growers who use it, and Florida orange growers who do not?

    William W. Goodrich:

    Yes, there was some marked evidence of that kind, sir, but the —

    Hugo L. Black:

    On the basis that those who do not use it calling in fact attention to the fact that it’s dangerous?

    William W. Goodrich:

    There — there was nothing (Voice Overlap) —

    Hugo L. Black:

    Could go — whether that’s a fact or not?

    William W. Goodrich:

    There was something of that kind here but the — the hearing was concerned with whether the color itself was a harmless one for unrestricted use in foods, not aimed or directed at this Florida use, this single use.

    William W. Goodrich:

    If and when this necessary scientific evidence and the necessary change in law will take place, then we will have to concern ourselves with the problem of economic need.

    My opponents say that economic need is established in this case because the two congressional committees considering the mandatory legislation so desired.

    Not that there’s a word in the record about the need for this color.

    On the contrary, a spokesman from Florida Citrus Exchange testified at the hearing that the commission’s presence was not to be interpreted as objecting to any action the Department might deem necessary on the basis of this record.

    That’s the sole evidence there.

    There is some little evidence by the commission that the amounts of color in oranges alone were small, but nothing on economic.

    Felix Frankfurter:

    When you — you were answering Justice Black, that there was some testimony between nonusers and users of the color in Florida.

    Am I to infer that there was a portion of the orange grower industry in Florida which, out of a sense of responsibility, abstained from using color because they felt it was deleterious?

    William W. Goodrich:

    There was no evidence of that kind.

    There was a brief filed on behalf of Chase & Company, which appears in the record which challenges the whole system.

    Now —

    Hugo L. Black:

    On what ground?

    William W. Goodrich:

    On the ground that color is not needed, that it’s toxic and that it conceals damage and inferiority.

    Now —

    Hugo L. Black:

    Who is Chase & Company?

    William W. Goodrich:

    He is a grower of the Indian River type oranges.

    I believe, which does not need the color in Florida.

    There was some country —

    Felix Frankfurter:

    You mean nature provides the color?

    William W. Goodrich:

    Sir?

    Felix Frankfurter:

    You mean nature provides color in the Indian —

    William W. Goodrich:

    No.

    The Indian River orange grows to a natural beautiness, a dozen requirements —

    Felix Frankfurter:

    That’s what I mean.

    William W. Goodrich:

    Yes.

    Felix Frankfurter:

    That nature takes care of it.

    William W. Goodrich:

    Yes.

    Felix Frankfurter:

    Nature provides the beauty.

    William W. Goodrich:

    Yes.

    I’m sorry I misunderstood you, sir.

    William W. Goodrich:

    The same as the Valencias in California but the –I have not — we have not — had to face that question yet because the color itself is not a harmless color and that being so, we didn’t feel that if we got into these underlying question.

    Now, if the Court accept the Fifth Circuit view that 406 (a) can be applied to coal-tar colors, which cannot be classified as harmless, we think that matters should be remanded to the Department for consideration of these question which you are bringing up.

    Instead of doing it, this Court of Appeals for the Fifth Circuit simply wrote a two-page rule for itself, saying that the color could be contained on Texas and Florida oranges until we could prove that the oranges were poisonous and meanwhile, we —

    Hugo L. Black:

    You mean all the oranges?

    William W. Goodrich:

    On Texas and Florida oranges meeting maturity standards established by the State laws.

    Hugo L. Black:

    But is the — is the record clear to the effect that the same amount of color is automatically put on every orange so there’s no danger of having enough to do damage?

    William W. Goodrich:

    The only evidence in the record, Your Honor, is on the basis of two boxes of orange.

    Two boxes of pineapple oranges from Florida is the only — in that part is the only analysis shown.

    It appears on the last page of the record, to the next, the last page, 259.

    I chose from a reading of it that it’s best together with the testimony of the Florida Citrus Exchange, Florida Citrus Commission which appears on page 224 of the record.

    It shows that these analyses were based on two boxes of oranges.

    Now, just what the variations are going to be from orange to orange and from box to box, we do not know.

    This is all there is in the record and on that basis, the Secretary found that there was no adequate basis in this record on which he could decide how much color was used and how much food nor was there a scientific basis for deciding that any particular amount would or would not — would be safe, as long as the science was endeavored.

    Felix Frankfurter:

    Mr. Goodrich.

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    On this last point would point which is really important if one reaches it —

    William W. Goodrich:

    Yes, Your Honor.

    Felix Frankfurter:

    — namely, is moving everything they read about it, whether the Court was justified in drawing out the restriction of the Secretary rather than — and — and adopting what it did rather than sending it back then.

    Maybe certified to use in coloring the skin of oranges meeting minimum maturity standards prescribed in the State of Florida and Texas, —

    William W. Goodrich:

    Yes, sir.

    Felix Frankfurter:

    — now, what kind of standard resulted?

    William W. Goodrich:

    They are state laws.

    Felix Frankfurter:

    Yes, I gather that.

    William W. Goodrich:

    That they’re enacted by the State laws to guarantee that color will not be used on immature fruit.

    Felix Frankfurter:

    Just a general proposition like that?

    William W. Goodrich:

    No.

    They — they are — they have provisions for sugars and acids in the oranges.

    They exercise laboratory controls under the Florida laws to prevent the shipment of immature fruits.

    Felix Frankfurter:

    Well, that those standards are not a clear and free permission in the use of — of color within the discretion of the growers, is that right?

    William W. Goodrich:

    No.

    William W. Goodrich:

    They’ve — they thought oranges could only be colored if they met certain maturity standards.

    I understand my opponents argue that only the better oranges can be colored under state law.

    Felix Frankfurter:

    But now, that implies — that implies or doesn’t imply that some restrictions must be put upon the use of this Red — Red Number 32 and it’s not to be left to the discretion of a (Inaudible) is that right?

    William W. Goodrich:

    It certainly does, and —

    Felix Frankfurter:

    Continuous for what — on what basis did the Court adopt the state standard rather than letting the Secretary — because that implies he may impose some limitations.

    What — on what basis did the court determine what the limitation should be rather that the Secretary determine the limitation?

    William W. Goodrich:

    I joined the dissenting Chief Justice of the Chief Judge at the Court of Appeals.

    They did it on the basis of legislative and not judicial authority.

    Thank you, Your Honors.

    Earl Warren:

    Mr. Peterson.

    J. Hardin Peterson:

    Chief Justice, if the Court please.

    At first I will to try clear a few situations and give information that may be helpful to the Court by reason of the questions that have arisen.

    The reason it is necessary to color oranges is climatic.

    The reason you color more in one season than you do another is because of the difference in season, as we have a late cold or not.

    The early oranges — and then what I’m stating is some place and other different places in the record.

    The early orange in Florida will become mature and still be green on the outside.

    It takes the cold nights and the warm days to color an orange.

    Then when the cold comes, that will turn in a very beautiful color.

    But at that time, the fruit which is a very fine fruit to eat a few weeks previously can be insipid and over mature.

    And that is the reason the early oranges have to be colored.

    The late orange has a different problem, the Valencia.

    And the Valencia in Florida and oranges one of the few fruits that will have blooms and little oranges just coming out of the bloom and practically mature fruit all at the same time.

    And when the chlorophyll goes into the tree in the spring, it goes back into the orange and you will have a Valencia, a beautiful orange in January or February when the — it is — we’ve had the cool nights.

    And it’s not yet good to eat.

    It’s still immature on the inside.

    In other words, you’ve got a — a ripe appearing orange on the outside and green and immature on the inside.

    And in some instance, it’d be totally green and in — in other instances, it will be streaky and when it reaches fully matured, it’s greener on the outside that it was when it’s immature.

    The Department of Agriculture for a long period of time studied more than 30 years ago.

    They started studies of it.

    In a way, they are the ones that taught us to do this thing.

    J. Hardin Peterson:

    They’re in the yearbook and official reports which I have quoted in my brief so they can go and get a picture of it.

    They told why we had to do this.

    One of the first of the instances in having the color and when they start to use it was over on the State, we don’t think much of — that raises citrus but was in Mr. Justice Black’s State of Alabama, Satsuma.

    The Satsuma will get a — a good tasting and still be green on the outside.

    They were raising a few Satsumas and there was experimentation carried that and that’s the reason, economically, we have to do it.

    It’s been part of the agriculture said it repeatedly, both the Senate and the House Committees in their report said it was an economic necessity.

    The — in — by reason of the fact that this quotation in the brief with reference to the testimony of the Florida Citrus Commission, the Florida Citrus Commission of the State through the Attorney General has filed a very short brief explaining to the Court.

    And in there, there is the — a table on page 4 showing the percentage of coloring and it’s — runs there by years there since 1938 and 1939 up to 1957.

    And in many years, we’ve colored 72.7%, 70.9%, 69.4%, 65%, 61.9%, 65%, 160%, 64.3%, 63% and the highest was in 1945, 76% as of all the fresh fruit is colored with this color.

    There are few instances if you have — in the end, in the other section, there are few that grows on — well, the fruit may color fine.

    It’s a smaller percentage and answering the distinguished Justice’s question about what whether other people use this not, the record will show that the Chase & Company who filed the petition as a friend of the Court and is opposed generally to the coloring of fruit, covered more — colored more and all the half of all the fruit he shipped.

    It’s just a question if — if you happen to have a good season in one part of the State, the color is good, you don’t have to color.

    If you don’t have good seed, you color.

    And that —

    Hugo L. Black:

    Well, does that — does that brief show that they did that because of the season or because of these competitions?

    J. Hardin Peterson:

    To — to — in part, both.

    However, in — in some areas, there they do at some seasons they’ll have very beautiful fruit.

    And the other seasons, they don’t.

    The record will show that here before (Inaudible), all of the fruit that went out of Texas had to be colored.

    Hugo L. Black:

    Where is (Inaudible)

    J. Hardin Peterson:

    Every box of fruit that went out of Texas —

    Hugo L. Black:

    Where — where is (Inaudible) company located?

    J. Hardin Peterson:

    In Florida.

    Hugo L. Black:

    What part?

    J. Hardin Peterson:

    Near Sanford.

    And they — or have those between Sanford and Titusville, in that area there, and a little over in Palatka and they — they’re a very fine and reputable company.

    Potter Stewart:

    Mr. Peterson, there were —

    J. Hardin Peterson:

    Yes, sir.

    Potter Stewart:

    — some up there are here before as no issues whatsoever as to deception or unfair —

    J. Hardin Peterson:

    No, sir.

    Potter Stewart:

    — petitioner, or any system to —

    J. Hardin Peterson:

    And —

    Potter Stewart:

    — that at all.

    J. Hardin Peterson:

    And —

    Potter Stewart:

    Is that correct?

    J. Hardin Peterson:

    And distinguished Justice asked the next thing I was going to cover.

    If these were used — were being used for the purpose of deception, I wouldn’t be here.

    I’ve been one of those who have fought for the integrity of the industry for years and I wanted a high maturity standard.

    And the way we avoid that and as reference made to the regulations and statutes in Florida, the Florida Citrus Code required a higher degree of maturity before you can color than otherwise.

    In other words, they — they — there’s a ratio of total soluble solids to anhydrous citric acid and then the bricks, and then you have — have to have certain amount of solids and there’s a high requirement before you color — to legalize the color.

    There’s a high ratio in the Citrus Code spelled out in there.

    In addition to that, he can’t use that color except that which is certified by the Federal Health, Education and Welfare, you — and the persons who manufacture the color must be licensed.

    They’re rather strict and the — the various packing houses have their laboratories there.

    It was for the purpose of forbidding the shipment and entered dates stationed to that.

    The oranges on which the color added is used are stamped, “color added.”

    If you go in the market, you’d find “color added” and that was by the recent requirement of the Federal Government at the time.

    And so —

    Potter Stewart:

    Mr. Peterson, what — what’s the percentage that the process should be?

    J. Hardin Peterson:

    What percentage is required for this color to be shipped?

    You mean shipped freight?

    Potter Stewart:

    Well, I — I gather this — this coloring problem only deals those — with the oranges that were shipped out of the State, that is most of the —

    J. Hardin Peterson:

    Oh that — that will be all the fruit that goes out the State.

    Potter Stewart:

    They all go out of the State.

    J. Hardin Peterson:

    Yes, sir.

    About now that there’s a little bit each year.

    We — we’re putting more and more and concentrate about — all the fruit is of freight food shipments.

    Potter Stewart:

    Well, all that goes into concentrate, frozen orange juices, and things of that kind, they — are those oranges colored?

    J. Hardin Peterson:

    No, sir.

    Those are not colored.

    Potter Stewart:

    Well, is that a — does that consume a substantial proportion of the total crop?

    J. Hardin Peterson:

    That takes about half of the crop now, and you don’t have to — it’s if you plan — that goes in the fresh market, that is the — the colored.

    William J. Brennan, Jr.:

    That’s what we’re talking about here?

    J. Hardin Peterson:

    Yes, that’s right.

    If you —

    William J. Brennan, Jr.:

    But if you —

    Potter Stewart:

    Instead of a declining market, the fresh market?

    J. Hardin Peterson:

    Sir?

    Potter Stewart:

    Isn’t the fresh market a declining market?

    J. Hardin Peterson:

    The fresh market is not a declining — well, we — no, sir.

    We’ve kept pace but there’s more people using concentrate than did before but we’ve had an increase crop until the freeze last year.

    Each year, we’re stepping ahead and in the increase in the crop.

    This — this as appears before us, the Department in their consideration of this new order.

    And I think the Department’s in a different position than they would’ve been in the original application for certification.

    An original application for certification then they would — we had to make the showing that it was harmless.

    And then we made a showing and made a good showing there and Dr. Calvin (ph) by testifying.

    That was in 1939 after another 300 million boxes of fruit were shipped.

    The Secretary then attempts to decertify the color and he didn’t learn a thing and didn’t have any new evidence that didn’t have in 1939, that at extreme high levels it’s harmful, but at the same token, shrimp, bacon, dandelion greens, rhubarb, salt, pepper, vinegar, and many other things are harmful.

    Hugo L. Black:

    That’s not quite the same as this, is it?

    J. Hardin Peterson:

    Sir?

    Hugo L. Black:

    They are harmful, you say, if you eat too much or drink too much of something —

    J. Hardin Peterson:

    That’s right.

    But you’d have to eat more oranges, peeling and all than you would shrimp —

    Hugo L. Black:

    Provided —

    J. Hardin Peterson:

    — to get sick (Voice Overlap) —

    Hugo L. Black:

    Provided there’s no extra dose happens to be put on of a part — of a particle that is poisonous and is such.

    J. Hardin Peterson:

    Yes.

    Hugo L. Black:

    Not merely one that if you eat too much, it will make you sick, for one for poison if — if it’s too much up.

    J. Hardin Peterson:

    Yes.

    If you ate oranges, peeling and all, you’d have to eat 14 times as many oranges, there’s a bar in the oranges as you would have to eat shrimp before you get sick from the toxic condition.

    Hugo L. Black:

    What did the record show about the guarantee that that minimum amount will always appear on every orange?

    J. Hardin Peterson:

    Well, that’s something of course normally the Secretary would have in his police authority to do, any color they certify is — is both complying, if it don’t — you just have to —

    Hugo L. Black:

    That’s — that would be rather difficult to look at — at each one.

    J. Hardin Peterson:

    No.

    Hugo L. Black:

    I assume maybe that there might be a difference in the —

    J. Hardin Peterson:

    Not —

    Hugo L. Black:

    (Inaudible)

    J. Hardin Peterson:

    — not anymore in coloring or as much in coloring as it would in the colors that are going into medicines and in the — on cherries and things that you take internally.

    This is a — is an oil-soluble color.

    It doesn’t even penetrate the rug.

    The only extreme instance is would you ever get any of it in would if you were juicing a color-add orange or making marmalade out of it.

    That’s only extreme environment use.

    Hugo L. Black:

    How is it put on?

    J. Hardin Peterson:

    Kind of a — like you — a wax or felting and runs through and then it’s washed off —

    Hugo L. Black:

    By individual —

    J. Hardin Peterson:

    — and it’s not much.

    Hugo L. Black:

    — or by machine?

    J. Hardin Peterson:

    No, it’s machine, Your Honor, but it’s a very, very (Inaudible) and in syringed and is a regular to protect everything.

    If there are — a minimal amount, it’s only four parts per million there and this figures which — so much about having to drink 5000 gallons of juice, eat 7500 oranges, you have to take that quantity to — to hurt you.

    Charles E. Whittaker:

    That is if you lived on oranges, but like —

    J. Hardin Peterson:

    Yes.

    Charles E. Whittaker:

    — like bread, man doesn’t live on —

    J. Hardin Peterson:

    The —

    Charles E. Whittaker:

    — oranges alone, does it?

    J. Hardin Peterson:

    No, sir.

    That’s right but it takes that much, you have to get that much out of — out of oranges before it hurts you, even if you do it in a long, long period of time.

    So it — it depends on the amounts you ingest and there’s no question about fact in that because in the testimony and the reason that’s important, the testimony before the Committee, it’s important only to this extent, it was the analysis of the Food and Drug Administration of their opinion of what they have and it’s not shown.

    William O. Douglas:

    But according to the Second Circuit, this is used in cookies, in cakes, in olives, in pickles, flour, bread, as well as oranges.

    J. Hardin Peterson:

    Yes.

    That — that this color is not used on this.

    This is an oil-soluble color.

    William O. Douglas:

    At the same —

    J. Hardin Peterson:

    — instead of the water soluble color and this color in the record shows —

    William O. Douglas:

    Is the Circuit Court or the Second Circuit wrong in its statement, that this chemical is used as —

    J. Hardin Peterson:

    The Second Circuit didn’t go quite as far as Mr. Goodrich argues.

    They — they — the — the middle ground in there that you can’t see, it must be absolute or zero nontoxic.

    William O. Douglas:

    The good thing is, and this thing is in 25 different foods unless you know how much of those foods everybody is —

    J. Hardin Peterson:

    That’s right and there was —

    William O. Douglas:

    — is going to eat everyday.

    You don’t know how much the total effect will be.

    J. Hardin Peterson:

    There’s no evidence in that case as to the amount used and therefore, they — they practically had to decide like you did.

    The only evidence is the amount used in any food was on oranges, on the outside of oranges and that was the testimony as to the amount used and the testimony shows that it was the only use for it.

    And I also would say that if the Secretary and the Court and I think the Fifth Circuit’s decision was a good decision that the word “harmless” has to be considered in a relative manner, taking in consideration the quantity.

    The — and that is what — as I understand this, where the Court has said in the Lexington Mill case.

    In the Lexington Mill case, this Court quoted from the chairman of the committee and in 1906 Act and he said, “All things that are not — that all things that contain poison are not poisonous” and pointed out that you’ve got to take it quantitatively.

    In the Wood’s case which is cited in our brief is a similar situation.

    Now, that was a case of soda water.

    Felix Frankfurter:

    But even as to your — as to that kind of argument, the question that — that is subject they’ve put to you, I should like to (Inaudible) namely if this kind of potentially poisonous matter you’re taking on your premises, sufficient quantity, maybe taken into the human body not merely through oranges although there’s nothing but oranges, but to other items of food and nobody knows in what proportion and I shouldn’t think it makes much difference whether it’s oil-soluble or water-soluble —

    J. Hardin Peterson:

    Yes.

    Felix Frankfurter:

    — provided that kind of toxicity goes into my body, it becomes relevant for the Secretary to say, “I’m not going to certify this color for no food not excluding oranges.”

    J. Hardin Peterson:

    That’s — that’s true but if that were true, they can — they couldn’t certify other colors.

    They are certifying colors of greater toxicity than this.

    Felix Frankfurter:

    Well, and that that —

    J. Hardin Peterson:

    And — and —

    Felix Frankfurter:

    It’s before us Mr. Peterson.

    J. Hardin Peterson:

    Yes, but the only reason — and — and I want to protect public health.

    I want this — I wouldn’t want this Court to strike down anything that is against to public —

    Felix Frankfurter:

    I’m assuming.

    J. Hardin Peterson:

    — health.

    But the problem here has to be is that even as used by various persons that he has no right to certify it if at any level it is toxic.

    In other words, he — the Secretary and his order would show that he feels that he has no right to — if it’s harmless — harmful at any level that he has right to certify.

    J. Hardin Peterson:

    He doesn’t think he has that right.

    Now, we say that he has the right to take in consideration the use, the quantities and the other uses and those sort of things, and that there being no showing that he should have had some evidence before he took it off the certified list of it.

    Felix Frankfurter:

    Writes up — wouldn’t wouldn’t you say he had some evidence.

    I don’t know what it’s worth is, I’m — I, myself dubious of transferring results on — on cats and dogs and mice and rat over to the effect on human, but I’m not confident they have an opinion on that subject, and (Inaudible) to do that.

    Now, why (Inaudible) a Secretary a right to do that?

    J. Hardin Peterson:

    The Secretary has the discretion of, it says “harmless” and then he has the right to determine and to consider and the granting of tolerances or the certifying for a special use are only other ways of determining that it is kept harmless.

    Now, they were the — the Secretary previously, some of the secretaries were of that opinion because they certified dyes for Easter eggs alone.

    Felix Frankfurter:

    But views not only change, but has a right to change in a field like Chemistry where there’s new knowledge or new inferences from all knowledge.

    J. Hardin Peterson:

    Your Honor, it’s eminently correct but the evidence today is the same as it was then.

    Felix Frankfurter:

    Well, but —

    J. Hardin Peterson:

    I mean they just —

    Felix Frankfurter:

    (Inaudible)

    J. Hardin Peterson:

    — shows that.

    Felix Frankfurter:

    — more insights on the same evidence.

    J. Hardin Peterson:

    Yes.

    Felix Frankfurter:

    Different (Voice Overlap) —

    J. Hardin Peterson:

    And so his — his is not — is not a question of finding of evidence, it’s a question of he misinterpreted what rights he had under the law.

    He says, “If it’s harm at any level, I can’t.”

    Now, you say that doesn’t apply to insecticides because he has the right to do that and he doesn’t apply to, now to all other food additives since the new Food Additives Act passed a few weeks ago, these questions that Mr. Goodrich about oil, and they were saying, they’ve put it to rest because the Secretary spelled out last.

    So, it leaves them this question of food that have colors left out by itself and it’s in the peculiar position, if the coloring in the juice of an orange are in the — on cherries or something you’re taking in, he has the right to grant a tolerance according to his position.

    If it’s in the marmalade and you color that, he still has the right to grant a tolerance but because of the fact that the Act provides as harmless and he can choose harmless as being without any harm at any level, he can’t certify — he’s saying he can’t certify on the outside of an orange when the chance of getting in the human body is so minute.

    And we feel that he has a right to take in and –and Dr. Calvin, Chief of Bureau of Pharmacology said that.

    Mr. (Inaudible) testified before the Committee that that was the situation that there is no substance that was totally without harm.

    And then in the last few weeks in the report on the food additive bill, the Congress in its report pointed out that a pound of a salt or four gallons of water taken within an hour would be — would be a harm, that so under this standard, nothing could be certified.

    Now there’s question about the fact that they had allowed us to three-year stay, which we did.

    They — we were desperate.

    We were in the right — beginning of the portion of the mid season shipment, and the Court granted a stay and as Congress passed that, there was a sort of compromise being worked out.

    But under the interpretation now placed by the Secretary, we come up with a new color.

    If it’s 50 times higher, and no effect level, his position is, he can’t certify.

    Felix Frankfurter:

    Let me ask you this Mr. Peterson.

    J. Hardin Peterson:

    Yes, sir.

    Felix Frankfurter:

    And you can’t imagine how ignorant I am of telling you.

    J. Hardin Peterson:

    Well, now I am sir.

    Felix Frankfurter:

    Would not agree?

    J. Hardin Peterson:

    You’re not ignorant on any source, I’m sure, sir.

    Felix Frankfurter:

    I do believe through all the controversies during Dr. Wiley and Dr. Osburg —

    J. Hardin Peterson:

    Yes.

    Felix Frankfurter:

    — and had something to do with the letters of (Voice Overlap) —

    J. Hardin Peterson:

    That’s right, sir.

    Felix Frankfurter:

    So, that’s the source of my knowledge.

    Now, is coal-tar color — is this color like salt in the sense that I can take some salt, can I?

    J. Hardin Peterson:

    Yes.

    Felix Frankfurter:

    In moderation.

    J. Hardin Peterson:

    Yes, sir.

    Felix Frankfurter:

    Can I take coal-tar into the body?

    J. Hardin Peterson:

    Yes, you can take coal-tar as — but it won’t hurt you.

    Felix Frankfurter:

    You mean, I can just take it as a — assuming I can swallow it?

    J. Hardin Peterson:

    Oh, well, the peculiar — there’s another thing, but this coal-tar color, the old definition was that which could be made from coal-tars.

    Many instances now, it’s made out of petroleum products or even vegetable matters.

    The definition is almost obsolete but if it’s a color that could have been made from coal-tar, yes, that you —

    Felix Frankfurter:

    If you found this in the —

    J. Hardin Peterson:

    It —

    Felix Frankfurter:

    — on the tip of a small —

    J. Hardin Peterson:

    Oh, but always on the tip of the hair and — and —

    Felix Frankfurter:

    Is this part salt?

    J. Hardin Peterson:

    Yes, sir.

    And you can take more and more of it.

    A large quantity before it’s harmful.

    The test according — I didn’t want too much, in fact, but the test, the — all these test animals are all, many hundreds of times, the amount that’s — would be taken in the human body and the Food and Drug Administration has in their testimony, there’s no showing that as used here, it’s harmful, but they just say we —

    Felix Frankfurter:

    But I’m talking about it’s harmful — what I’m — there are things which even chemists call poisons as against — now, they don’t call salt a poison.

    J. Hardin Peterson:

    No sir.

    (Voice Overlap) That’s right sir.

    Felix Frankfurter:

    (Voice Overlap) become poisonous and toxic.

    J. Hardin Peterson:

    But it can and yes.

    That’s right.

    Felix Frankfurter:

    It’s a very different thing.

    J. Hardin Peterson:

    Yes, sir.

    Felix Frankfurter:

    But I want to know is whether this color is something that is — this is in and of itself —

    J. Hardin Peterson:

    It’s innocent in and of itself.

    Felix Frankfurter:

    (Inaudible)

    J. Hardin Peterson:

    Yes, sir.

    It doesn’t hurt you to —

    Felix Frankfurter:

    In and of itself.

    J. Hardin Peterson:

    Yes.

    It — it doesn’t hurt you until you’ve taken an immense —

    Felix Frankfurter:

    Just like salt.

    J. Hardin Peterson:

    — high quantity.

    Felix Frankfurter:

    Just like salt.

    J. Hardin Peterson:

    Yes, so just like salt.

    That’s —

    Felix Frankfurter:

    All right.

    J. Hardin Peterson:

    Yes, sir.

    I think I’ve covered the high spots, and my —

    Earl Warren:

    Is — is Red —

    J. Hardin Peterson:

    — colleague here would —

    Earl Warren:

    Is Red 32 —

    J. Hardin Peterson:

    Sir?

    Earl Warren:

    Is Red 32 harmless in and of itself?

    J. Hardin Peterson:

    It depends on how we interpret it harmless.

    At high levels — at extreme high levels, it will hurt.

    Earl Warren:

    But using the same — same —

    J. Hardin Peterson:

    The same —

    Earl Warren:

    — question as —

    J. Hardin Peterson:

    — same thing to salt.

    Earl Warren:

    — that —

    J. Hardin Peterson:

    — same thing to —

    Earl Warren:

    — That — that Justice Frankfurter used, is Red 32 harmless?

    J. Hardin Peterson:

    Red 32 in my opinion is harmless, yes.

    Earl Warren:

    Is harmless?

    J. Hardin Peterson:

    Harmless, yes, sir.

    It is harmless.

    Hugo L. Black:

    You mean as you define harmless.

    J. Hardin Peterson:

    Sir?

    Hugo L. Black:

    You mean as you define harmless.

    That’s the —

    J. Hardin Peterson:

    Yes, as I define harmless.

    Hugo L. Black:

    Is that your real —

    J. Hardin Peterson:

    It will cause damage at extreme high levels.

    It is 1/14, the toxicity of shrimp.

    Hugo L. Black:

    Is that your real difference as in what the word harmless means?

    J. Hardin Peterson:

    Yes.

    So, that’s the real difference.

    Hugo L. Black:

    Do you object to their finding?

    J. Hardin Peterson:

    Yes.

    That —

    Hugo L. Black:

    Do you object to their findings?

    Are they challenged?

    J. Hardin Peterson:

    They — the findings were based on their own substantive law.

    Hugo L. Black:

    (Inaudible)

    J. Hardin Peterson:

    We — we don’t — we don’t challenge the fact that it’s — these levels that they had, that it calls this — that this — to the test animals, but the testimony shows that they made no tests at the normal levels of use.You don’t liken this to the insecticide do you at all?

    J. Hardin Peterson:

    Sir?

    Hugo L. Black:

    You don’t liken this that if Congress hasn’t treated the insecticide, then the coloring matter is the same at anytime have they?

    J. Hardin Peterson:

    No, sir.

    But they allowed greater tolerance than insecticides and — and they say they don’t have to miss.

    Hugo L. Black:

    That’s because its proof will be absolutely destroying.

    J. Hardin Peterson:

    Yes, sir.

    And this can —

    Hugo L. Black:

    What is — what is the basis for the statement of the economic disaster that will come to Florida if none of it —

    J. Hardin Peterson:

    They’d —

    Hugo L. Black:

    — none of that oranges.

    J. Hardin Peterson:

    They just won’t buy their fruit, it’s as green and streaked looking.

    It’s been tried.

    Hugo L. Black:

    You mean — you mean you couldn’t sell that part of the fruit outside of Florida?

    J. Hardin Peterson:

    Yes, sir.

    That’s right.

    They just —

    Felix Frankfurter:

    Well, probably you don’t color it for your Florida consumers?

    J. Hardin Peterson:

    Sir?

    Felix Frankfurter:

    You do not color it for Florida consumers?

    J. Hardin Peterson:

    We — we sell very little in —

    Felix Frankfurter:

    Well, —

    J. Hardin Peterson:

    Florida —

    Felix Frankfurter:

    Well, is that a good —

    J. Hardin Peterson:

    — so I’ll say of the —

    Felix Frankfurter:

    Florida is the — is the biggest State.

    J. Hardin Peterson:

    Yes, sir.

    We — we get it from our own roads, the roadside stands.

    Now, in the roadside stands, it’s colored mostly.

    Hugo L. Black:

    So when you go to Miami or Saint Petersburg or Tampa to get out orange juice, they don’t color, they don’t —

    J. Hardin Peterson:

    They don’t color for the orange juice.

    J. Hardin Peterson:

    No sir, because that’d be an extra (Voice Overlap) and no need.

    Hugo L. Black:

    Do you mean that oranges that are bought in are not colored, isn’t that right?(Voice Overlap) —

    J. Hardin Peterson:

    At the roadside stand — at the roadside stands it’d will be practically all colored.

    Hugo L. Black:

    Roadside stands —

    J. Hardin Peterson:

    Yes, sir.

    Hugo L. Black:

    — as a man coming (Voice Overlap) —

    J. Hardin Peterson:

    The only place you that you go and the man’s grove and he gives you some, they won’t be colored or if you buy some there and that situation that’s there.

    But if it’s — if it was going in the market, if it’s Saint Petersburg or Miami, that fruit that’s in the market there is — is colored.

    Hugo L. Black:

    They’re not all colored.

    Earl Warren:

    Yes.

    Hugo L. Black:

    I mean, up here, are they?

    J. Hardin Peterson:

    No sir.

    About 68% of all fruit that comes up are colored.

    William O. Douglas:

    Has any attempt been made to teach people what’s green is, green in orange is sweet?

    J. Hardin Peterson:

    I beg your pardon, I didn’t get you.

    William O. Douglas:

    Has any attempt been made to teach people that what’s green in orange is sweet, green color associate —

    J. Hardin Peterson:

    The green —

    William O. Douglas:

    All sorts of things have been done with advertising in this country as (Voice Overlap) —

    J. Hardin Peterson:

    There’s been a little bit in Canada we’ve tried to do that a little bit hadn’t been very successful.

    The sales fell off considerably after that.

    William O. Douglas:

    So you — and —

    J. Hardin Peterson:

    As far as —

    William O. Douglas:

    You concentrated upon — on litigation rather than on education.

    [Laughter]

    J. Hardin Peterson:

    Sir — I didn’t get you.

    William O. Douglas:

    You concentrated on litigation rather than education.

    J. Hardin Peterson:

    We — we — they educate them to something — they’ve been telling them 20 or 30 years.

    Charles E. Whittaker:

    (Inaudible)

    J. Hardin Peterson:

    My time’s up then I didn’t want to take from my — were you about to ask?

    Charles E. Whittaker:

    I was going to ask of you, if there is now underway, any (Inaudible) for the adoption or promulgation of some kind of a formula that would not be doctrine?

    J. Hardin Peterson:

    All right.

    I think — I may be accused going outside of the record (Inaudible) the Court and I don’t think Mr. Goodrich would object.

    We’ve done research since then.

    We have a new color, which is — where we say as of this times the safety factor is this.

    It doesn’t have as much residue.

    It takes less colored matter, about 1/5 the total amount in the — I mean, about 1/10 the total amount in 1/15 of residue, but the position taken by my Department that even at high levels, it would harm a rat and they can’t certify that.

    Felix Frankfurter:

    Well, they supervised (Voice Overlap) —

    J. Hardin Peterson:

    Yes.

    They — the word harmless.

    The interpretation of the word harmless stands in the way of our working something out.

    Charles E. Whittaker:

    Well, it would be just the kind of statement in that way.

    J. Hardin Peterson:

    Yes, sir, and under this — under this interpretation as the Secretary construed, he can’t certify it and so this Court could say to them that in considering what is harmless, you must consider the uses and the amounts used and take those things, what I say reasonable rather than extremely, the — insist on zero toxicity and as nothing, zero toxicity except in the test tube.

    Hugo L. Black:

    I guess the statement you just made, it will be 50 times safer than salt.

    J. Hardin Peterson:

    Safer.

    Yes, sir.

    It’s safer than salt, yes.

    Salt, and a — there a lot of things, dandelion, rhubarb, bacon.

    Bacon is — it will make a person sick quicker than the same amount of this color.

    And this Court in the Lexington Mill case, it pointed out pretty well it’s within, said the air we breathes in, it appear.

    Charles E. Whittaker:

    The reason for my question as I understood you (Inaudible) the question was pertinent and give you this (Inaudible) from March 1 to (Inaudible)

    J. Hardin Peterson:

    We have a (Inaudible) but —

    William O. Douglas:

    I guess the Secretary, (Inaudible)

    (Inaudible)

    J. Hardin Peterson:

    His view is what went on to be (Inaudible)

    Maybe that’s a question for Congress and not the Board here?

    J. Hardin Peterson:

    Well — no, this Court has said in — in two case that it’s not the usurpation of how a court is going to interpret the word but they can interpret the will of the Congress in a reasonable way and — and that this Court I think it’s the (Inaudible) case is one them.

    The two cases as I cite them in the brief.

    Charles E. Whittaker:

    But are you interpreting words though in getting this (Inaudible)

    J. Hardin Peterson:

    Yes, sir.

    When you say that you must consider the usage and the amount.

    J. Hardin Peterson:

    Now, as to where, how much when it’s (Inaudible).

    The Court can’t do that, but the Court can say, it’s late for us to get a formula as to what Congress means.

    It has to be done —

    Hugo L. Black:

    Could you (Voice Overlap) — when you said that — when you said the air was more harmful than these things.(Voice Overlap) —

    J. Hardin Peterson:

    No, I didn’t say —

    Hugo L. Black:

    You didn’t mean Florida?

    J. Hardin Peterson:

    No.

    (Inaudible)

    I did say more harmful, (Inaudible) — the Court has pointed out as an opinion — thinking that the air we breathe (Inaudible)

    But thank you very much.

    [Laughter]

    Earl Warren:

    Mr. Hall.

    J. Lewis Hall:

    If the Court please, I would like to begin my argument about where Mr. Peterson has left all in the matter of the possibility of new color because I think that is the importance of this case.

    My agreement of counsel, arranged through one of our state officials, we were permitted to inform this Court outside the record of the fact that some $170,000 has been spent to this time in the development of a new color, which has only 1/10 of the toxicity of the Red 32, which color was used for many years for the coloring of oranges without a single complaint.

    Felix Frankfurter:

    I hate to interrupt you but you just used the word 1/10 of the toxicity of Red — now, what do you mean by speaking of the toxicity of this?

    J. Lewis Hall:

    If Your Honor please, as I will give the Court my understanding.

    As I understand —

    Felix Frankfurter:

    Are you —

    J. Lewis Hall:

    — 1/10 of the toxicity, that is of an equal amount of Red 32 and an equal amount of the new color —

    Felix Frankfurter:

    Yes, I understood that, but you interpreted toxicity to the red color.

    J. Lewis Hall:

    Oh, yes.

    Felix Frankfurter:

    Now, what does that mean?

    J. Lewis Hall:

    That means that if it is taken in sufficient quantities, it will have an adverse effect on the human or the animal which takes it.

    Now, no one denies.

    There isn’t any argument here at all that if given in massive doses, that Red 32 will have an adverse effect.

    Now, let’s — let me go to the question of harmless.

    I don’t quite think that our opposition here has been fully presented.

    Harmless as it was testified to before the Congress as it was used, we contend in regulations that harmless means without capacity to harm or without the probability or possibility of harm when used for the purposes intended and in the amounts for which it was designed.

    Now, in coloring of oranges, we have four parts per million, but as these tests were fed at 100 parts per million and 400 parts per million.

    So if — if Your Honor please, if harmless is to be construed in its absolute sense.

    J. Lewis Hall:

    That is that it is without the capacity to harm in no matter what amount and no whatever — for whatever purpose used then we can never qualify that new color.

    Now, we are — we are in — in this position as — as part of — of citrus industry.

    First, if the word ‘harmless’ is construed to mean, harmless in the — in the amounts used and for the purposes used then we can design a color that can be used for the coloring of oranges without danger to public health, but if the Department’s interpretation is correct and that is that all color must be absolutely harmless and if they are fairly correct, that they will not — do not have the power to establish the tolerances for the use of that color for the purposes for which it’s designed.

    Then we can never qualify a color that will color oranges.

    Now, I don’t — there are — there are statistics in the brief as to the importance of the color of oranges.

    Suffice it to say that it’s recognized in numerous official publications and is an economic fact of life in the citrus industry that the public mistakenly associates the color of the orange with maturity and as Mr. Peterson has explained, there is no relation.

    A great many times, the orange has a beautiful orange color before it is mature and the late orange has the — the green color before the maturity.

    So — but the public has associated that over the years and with the approval over the years of agricultural economists and officials, we have developed in the mind of the public that association between the color and maturity when in the state of nature such is not true.

    Hugo L. Black:

    Hasn’t that probably been contributed to by the very fact that you use color.

    J. Lewis Hall:

    It would be hard to say, Your Honor, but let me say this.

    There was not 1/10 of the market for oranges before color added was used that has been developed since that time.

    Hugo L. Black:

    What?

    J. Lewis Hall:

    And there is an immediate —

    Hugo L. Black:

    But they were selling more until they found out how good those Florida oranges are (Inaudible)

    J. Lewis Hall:

    I agree with you, Your Honor.

    Felix Frankfurter:

    Do you — do you think this line of argument — I mean, specifically, do you think the economic relevance or and importance of coloring — will you please state to what extent or in what way you think that the economic argument that you’re making, assuming I agree with you, even though you educated people to have lovely looking oranges as well as sweet tasting oranges, whether it’s cause or effect of an interplay, to what extent do you think that’s relevant to our problem?

    J. Lewis Hall:

    If Your Honor please —

    Felix Frankfurter:

    Scope of review, the exercise by this Court on what the Secretary did.

    J. Lewis Hall:

    I — I submitted as relevant for this reason.

    Of all of the foods that might need the aid of color, the orange was the only one that receives special recognition from Congress in this Act and special provisions were made by the Congress in the proviso by the continued coloring of oranges until these listings could take place.

    I think that the Congress recognized the economic importance of the color of oranges and therefore, I say that of all the other foods that might need the use of color, we claim for the orange the best ground for our basis, for our claim because the Congress and the enactment of this law specifically recognized the need of color for oranges and did not so recognize it for any other food.

    And then, of course, if Your Honor please, we’d go back to the fundamental rule of construction that a statute is to be construed to accomplish its purpose and it will not be construed to — to create great inconvenience, inequality or injustice unless it’s necessary for the accomplishment of the main purpose of the statute.

    Now —

    Could I ask you a question —

    J. Lewis Hall:

    Yes, sir.

    — at this point?

    Assuming that you give 406 (b) harmless in 406 (b) the meaning that you suggest should be given, less than absolute, what in that event would Section 406 (b) have accomplished that wasn’t already accomplished under 406 (a)?

    J. Lewis Hall:

    Well, if Your Honor please, I — I’m not sure that I understand your question, but let me say what —

    Well, what I mean is if you didn’t have 406 (b), 406 (a) which does permit tolerances would cover, of course, coal-tar colors.

    Since 406 (b) and that’s a separate provision, of course, for coal-tar colors which says that they have to be harmless.

    If you’d have construed harmless as meaning less than absolute, you’re not adding anything to 406 to the statute by — by enacting 406 (b), right?

    J. Lewis Hall:

    If Your Honor please, they take the position.

    I mean, the Department takes the position that 406 (a) with its power in the Department to establish tolerances for particular uses doesn’t apply to coal-tar color.

    That’s because of the existence of 406 (b).

    J. Lewis Hall:

    They say that the — that — that applies only to when — when the use of the poison is necessary in production.

    That’s only toward 406 (a) as they say that if it’s necessary in production then we have the power to establish tolerance.

    But isn’t — it didn’t have 406 (b) down (Inaudible) Secretary was under that to have been able to apply color (Inaudible) isn’t that right?

    J. Lewis Hall:

    If Your Honor please, I contend that he has the power to establish tolerances under 406 (a).

    I think that the Fifth Circuit was correct because the reference of the certification of these coal-tar colors in 402 says that the food shall be considered adulterated if it contains a coal-tar color not listed under the regulations contained in 406.

    Not 406 (a) or 406 (b), but 406.

    We contend that that makes them — that 406 (b) makes it mandatory as the coal-tar colors because of the economic necessity in the coloring of citrus fruit and nearly permissive as to 406 (a).

    We — we have a little slant, a different interpretation to that.

    The 406 (a) is permissive, 406 (b) is mandatory.

    That Congress recognized and amended the Act to make the — the listing of coal-tars that were harmless and suitable for use in food a mandatory duty.

    And the — the citrus industry was — the Congress was informed that the citrus — citrus industry’s problem at the time that that Act was being written.

    Now, if Your Honor please, we submit further that in addition to the fundamental rules of construction that would indicate that harmless is not to be given its absolute meaning, we contend that our contention is supported by the logic of the structure of this Act.

    Because harmless is used in this Act three times, the word “harmless” and the Secretary is required to certify coal-tar colors suitable for use in food, suitable for use in drugs and suitable for use, harmless and suitable for use in cosmetics.

    And in the coal-tar regulations promulgated in 1940 of — of greater allowance of poisonous materials will allow the in colors that were to be certified only for cosmetics and drugs and was allowed to be committed — permitted in the colors that were to be certified for food.

    So, in the very structure of the Act itself and in the departmental interpretation, they have interpreted harmless to mean for the uses of the — intended and the purposes intended and the amounts it was used.

    Felix Frankfurter:

    Now even — may I ask the question —

    J. Lewis Hall:

    Yes, sir.

    Felix Frankfurter:

    — as to (Inaudible)

    Even the decision which you are here supporting doesn’t give you, if I may say so, a free hand, does it?

    If —

    J. Lewis Hall:

    No, sir.

    Felix Frankfurter:

    — it engrafts it — it engrafts the — the standards described by your State, is it not?

    J. Lewis Hall:

    Well, it takes judicial notice of the bank that the laws of the State of Florida specifically forbid the coloring of oranges except the oranges which have arrived at the maximum state of sweetness and maturity and acidity.

    Felix Frankfurter:

    And is that all — are those the only restrictions by your stand — of your standing?

    J. Lewis Hall:

    Yes, sir.

    Felix Frankfurter:

    There’s no quantitative or qualitative prescription?

    J. Lewis Hall:

    No, sir.

    Because we’ve always felt that the — that the Department here would take care of the color situation and our State simply required the maturity of the orange before the color could be used on it.

    Felix Frankfurter:

    So what you’re — am I right in referring to this, one really squeezes your argument to its last drop, it gets down to just this, that without any — without any qualifications, the word “harmless” is here — is satisfied if the use of the proscribed color is for all the practical human purposes, non-harmful.

    That there is nothing merely which justify as a matter of doubt or controversy or uncertainty of the state of the chemical science, but there’s nothing, would justify the Secretary in having a doubt and resolving the doubt against the use of something that might be harmful.

    You say that the record doesn’t justify such a conclusion.

    J. Lewis Hall:

    If Your Honor please, let — let me start a little further back and see if I can bring a logical answer here.

    Let me say this, that the test designed in 1938, when this law was passed, they say that various levels to ascertain the level at which animals could take this food without bad results and we think that was the proper approach.

    As here is a dye or a — a color submitted that it is useful economically.

    And they said how much is it going to be possible for us to determine that it is safe for human consumption and use in foods and they say that relatively low levels and they came up with the conclusion that it could be used in those amounts and if that amount was far in excess of that use for coloring oranges or other purposes, and it was listed as a harmless color.

    Now, the test which were conducted in 1952 and 1953 were conducted for an entirely different purpose, admittedly so, by the Governments’ brief.

    They tested only to see if the color could be given in such massive amounts that it would produce an adverse effect and of course, it did.

    But there has been no effort to determine whether or not Red 32 can be used in safe amounts.

    So, we contend that we — that the citrus industry of the State of Florida will face economic disaster, unless, this statute is construed, meaning that a color can be developed for the use and coloring oranges and that the Department has the power to limit the use of that color to the purpose for which it was designed and brought in the bill.

    And we have a new color.

    We spent nearly $200,000 that is designed for the coloring of oranges.

    It has 10 times a safety margin and yet we take it to the Department and they say, “It’s toxic.”

    You can feed enough of it to a dog over a long enough period of time and will make him sick.

    Felix Frankfurter:

    That has been taken to the Department?

    J. Lewis Hall:

    I’m not quite sure, Your Honor.

    Don’t misunderstand me.

    I’m not worried about the — the color.

    I’m worried about how far my gentleman’s agreement as to what I can tell the Court.

    Felix Frankfurter:

    All right.

    J. Lewis Hall:

    But the — the color — but under the Department’s and under the Second Circuit’s interpretation, we can’t develop a color and take it in and say, “We want this certified for the purpose of coloring oranges and we want it — you to establish the tolerances that will guarantee you that when, so used, it — the public health will be protected.

    And we contend that this statute is susceptible of that interpretation, that it lies in the logic of the congressional intent that the word “harmless” means for purposes for which it’s used and the manner in which it’s used.

    And if we can present — and we say, if Your Honor please, that Red 32 is safe and they can prescribe the tolerances and those tolerances will protect the public health and still let us color oranges.

    Now, if Your Honor please, I think in conclusion that the Fifth Circuit looked at this case very much like a chancellor who had tried to evaluate a set of facts with the wrong conception of the law applicable to those facts.

    Well, here we have the Department that started out with test designed for a purpose which was not within the contemplation law that was designed under a misapprehension as to what the purpose of this statute was.

    So, we say that the interpretation, actually, was erroneous.

    And that it is possible this case should be remanded to the Secretary as did the Fifth Circuit to find out the safe level of use of Red 32, if there is such a safe use, and then if he establish the tolerances for its use and, it then, for having established that, to promulgate the regulations for the use of that color under those safeguards.

    Charles E. Whittaker:

    Could not Congress, sir, under this new color you have which is so much safer than Red 32, give you relief before March?

    J. Lewis Hall:

    If Your Honor please, we don’t think we need congressional permission.

    We think that it’s inherent in this Act and that all we need is that the — this Court to agree with the Fifth Circuit, that the Department already has the power to limit the use of that color to a particular purpose and to prescribe the amounts that can be used for that purpose and we will present them with a dye that will meet those requirements, provided this Court also says that harmless does mean absolute purity.

    We say that if you — if you say that harmless means that this color is safe for the purpose for which it’s designed and in the amounts, which is used with authority and the Secretary to prescribe the amounts and restrict the uses and purposes, our problems are solved.

    The Department has all the authority it needs to protect the public health.

    That’s what the Fifth Circuit said.

    They didn’t attempt to substitute their judgment.

    They simply knew that this test, admittedly, conducted for the wrong purpose and with the long list — conception of the law had no validity because they were not designed to — to produce the data to determine the safety of the color but to prove that the color could be used in a manner that was unsafe.

    And there’s a tremendous distinction.

    Felix Frankfurter:

    Mr. Hall do you suggest — do you say the lower court, you want us to do what — affirm what the lower court did, namely, remit this to the Secretary to recognize it as — as harmless and then define the limits within which it could be used, is that right?

    J. Lewis Hall:

    I think, if Your Honor please, let’s say first that the Court to define what the word “harmless” means in this statute when applied to colors.

    Second, to construe the Act as to whether or not he can limit the use of a color to a single food or one or two food — two or three more foods.

    And third, that if harmless is a relative term and he has the power to restrict it to one food to establish the tolerances in what amounts then all of the argument here of the — of the Department that we can’t do this, we can’t because we don’t know how many people will eat, how many foods, all of that goes out the window as — as of no validity.

    Because if this Court says, and I think that it lies in — as I said, in the logic of the structure of this Act, where they say that he can certify a harmless and suitable for this use, harmless and suitable for this use and harmless and suitable, where it says harmless and suitable for use in foods, harmless and suitable for use in drugs, harmless and suitable for use in cosmetics, we think he’s got the power to say, “Harmless and suitable for use in oranges if restricted to this amount.”

    Felix Frankfurter:

    As I understood, both you and Mr. Peterson, there are limitation, there are restrictions inherent in the orange industry, to be used, so that he doesn’t have to establish any tolerances because it’s only used at such a low level that there’s no gain to put a ceiling.

    Isn’t that what I get from your argument?

    J. Lewis Hall:

    Yes, sir.

    But if he wants — if he — he’s afraid that they’re going to ingest 2500 oranges a day and get poisoned, we want him to say that this can be limited so that they’ll have to eat 3000, four parts per million.

    We are not afraid of any tolerance that can be established because four parts per million is so infinitesimal in comparison.

    Let me give you the illustration, 2500 oranges, peeling and all, to ingest enough of this color on a weight basis that was used to make the rats sick and the dogs eat.

    Now, if Your Honor please, to show you that the Court — that the Department has taken that very attitude toward colors other than no use to color oranges.

    In — as late as 1950 in the official publications, the Department approved the use of a color called Violet No. 1 and specifically admitted that it could be bad in such large amounts that it would produce an adverse effect, but said that in the purposes for which it was used and in the amounts, no human being would by any possibility suffer adverse effect.

    All we want is that applied to oranges.

    Earl Warren:

    Mr. Goodrich.

    William W. Goodrich:

    Mr. Chief Justice.

    I’d like to address myself first to the arguments my opponents have made about 5000 oranges and 2500 oranges and 50 times more or less toxic than Red 32 and other statements which I believe are somewhat exaggerated from the record.

    The comparisons drawn of 50, 5000 oranges, 2500 oranges are all based on a transposition of the rat studies directly to man.

    The amounts of colors involved in the rat study, 1000 parts per million killed the rats.

    That is not a safe level.

    The lowest amount fed to dogs, 100 parts, killed one of the dogs.

    William W. Goodrich:

    So we have nothing under that.

    There’s simply no starting point for deciding that this color has a minimum toxicity.

    Earl Warren:

    Well, we’ll recess now Mr. —