Chocolate Manufacturers Association v. Block

United States Court of Appeals for the Fourth Circuit · Administrative Law

Administrative LawRulemakingNotice-and-CommentAPA5 U.S.C. § 553(b)(3)notice and commentlogical outgrowthfinal rule

Facts

USDA proposed revisions to WIC food package regulations after Congress redefined supplemental foods and directed attention to fat, sugar, and salt content. In the proposed rule and lengthy preamble, the Department discussed sugar concerns in foods such as cereals and juice, but expressly allowed milk to be either flavored or unflavored and said nothing about sugar in flavored milk. During the comment period, 78 commenters urged deletion of flavored milk because of its higher sugar content and greater cost, and the Department adopted that position in the final rule. CMA argued it had been misled into believing flavored milk was not under consideration for elimination and sought reopening of the rulemaking process.

Issue

Whether the Department's notice of proposed rulemaking under the APA adequately informed interested parties that flavored milk might be eliminated from the WIC Program, so that the final rule deleting flavored milk could be adopted without reopening comment. More specifically, the question was whether the final change was a logical outgrowth of the notice and comments already given.

Rule

Under APA § 553(b)(3), notice of proposed rulemaking must provide interested parties a fair opportunity to comment by describing the terms, substance, or subjects and issues involved. A final rule may differ from the proposal, but only if the changes are in character with the original scheme and are a logical outgrowth of the notice and comments already given; if the final rule materially alters the issues involved or substantially departs from the terms or substance of the proposed rule, notice is inadequate.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal nutrition agency published a proposed rule revising school snack standards. The preamble repeatedly identified sugary granola bars and fruit drinks as foods under sugar review, but it expressly continued to allow vanilla yogurt cups and said nothing negative about them. After comments from local program managers, the final rule banned vanilla yogurt cups because of sugar and cost concerns.

Was the ban on vanilla yogurt cups most likely adopted with adequate notice under the APA?

Explanation. Notice must fairly apprise interested parties of the subjects and issues involved and give them a fair opportunity to comment. A final rule may differ from the proposal, but only if the change is in character with the original scheme and is a logical outgrowth of the notice and comments already given. Here, the proposal affirmatively allowed vanilla yogurt cups while the preamble specifically discussed sugar concerns in other foods and was silent as to yogurt, making the later ban a substantial departure rather than a logical outgrowth. The defect is procedural notice inadequacy, not the sufficiency of the agency's substantive evidence. (Derived from Chocolate Manufacturers Association v. Block (n.d.).)