Columbia Cheese Co. v. McNutt , 137 F.2d 576 ( 1943 )

SWAN, Circuit Judge

(dissenting in part).

I am unable to agree with my brothers that the order should be in all respects affirmed.

For many years cheese having less than 33,% of milk fat has been sold as “cream cheese.” Almost every one in the industry, with the exception of the Kraft Cheese Co., objects to the requirement that such cheese hereafter be called “neufchatel.” The statute, 21 U.S.C.A. § 341, authorizes the Administrator to promulgate regulations “establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity,” etc. There is no finding that it is impracticable to use the common name and distinguish between cheese of different milk fat content by adjectives, for example, light cream cheese or heavy cream cheese. Without at least a finding of impracticability. I think it unreasonable to deprive the bulk of the industry of their good will in the commonly used name.

Next, take the standard of 33% fat and 55'% moisture. Finding 21 says that in good commercial practice the percentages of fat and moisture vary as much as 2,% above or below. In recognition of such variation the 35'% for fat (Finding 20) was dropped to 33%, but the 55% for moisture was not raised to 57%. This seems to me an arbitrary disregard of Finding 21.

As to the prohibition against adding water in the “hot-pack” process, there is a finding that water is sometimes used (Finding 27) and no finding of any reason why that practice must be discontinued. I think the findings fail to support this part of the order.

As to the cottage cheese the Administrator ignored the evidence as to the use of unpasteurized skimmed milk. He made no finding on the subject. The right to present evidence is a barren one if the trier of fact may fail to consider it. See A. E. Staley Mfg. Co. v. Secretary of Agriculture, 7 Cir., 120 F.2d 258, 261. I would send the case back for findings before approving this part of the order.

I agree that the order is supportable in so far as it relates to creamed cottage cheese.