California Table Grape Commission v. Health Division

ROSSMAN, J.

In this proceeding under ORS 183.400, petitioners challenge the validity of a rule by which the Health Division of the Department of Human Resources (Division) regulates the sale of sulfite treated foods in restaurants.¹ We hold the rule valid.

OAR 333-151-010(4) prohibits restaurants and certain other establishments from serving fresh fruits and vegetables to which sulfites have been added before delivery to the restaurant:

“Sulfur dioxide, sodium sulfite, sodium bisulfite, potassium, potassium bisulfite, sodium metabisulfite and potassium metabisulfite shall not be used in solution to dip, soak, spray or rinse fresh foods or foods to be consumed without cooking nor may these chemicals be added to or mixed singly or in combination to any food product in any establishment subject to OAR 333-150-000 through 333-168-020. Preservative products or additives containing one or more of these compounds may not be kept or stored in any establishment subject to these rules. Fresh vegetables, fresh salad items and fresh fruits to which these chemicals have been added during preparation or handling before delivery to an establishment, shall not be served.” (Emphasis supplied.)

Growers and distributors in the grape industry treat table grapes with the fungicide sulfur dioxide, a sulfite, before the grapes are shipped.

Petitioners contend that Division exceeded its statutory authority by prohibiting the serving of grapes that have had sulfur dioxide added to them before they arrive at the restaurant. They argue that the relevant statutes only authorize Division to prohibit a restaurant’s use of sulfites as a food additive, not a restaurant’s use of food to which growers or distributors have added sulfites.

We disagree. ORS 616.073 expresses the policy of the state of Oregon about sulfite use:

“(1) The Legislative Assembly finds that sulfites used as an additive in fresh foods and foods to be consumed without cooking may have already caused the death of one Oregonian and may pose a threat to the health of thousands of Oregonians.

“(2) The Legislative Assembly further finds that the presence of sulfites in fresh foods and foods to be consumed without cooking is not readily detectable by consumers of the food.

“(3) It is therefore the policy of the State of Oregon to protect its citizens from the adverse effects of sulfites by:

“(a) Prohibiting the use of sulfites in fresh foods and foods to be consumed without cooking by any restaurant licensed under ORS 624.010 to [ORS] 624.120 and [ORS] 624.310 to [ORS] 624.440; and .

‘ ‘ (b) Encouraging the use of an alternative to sulfites in food processing.”

ORS 616.073(1) refers to a death that might have been caused by sulfites used as an additive. The statute as a whole, however, expresses an intent to protect restaurant patrons from ingesting sulfite-treated foods, whatever the source of the sulfites. Obviously, that goal could only be accomplished if restaurants refrain from serving foods that have been treated with sulfites by growers and distributors, as well as those that have been treated by the restaurants themselves. Recognizing that fact, the legislature directed Division to adopt rules necessary “to implement the policy of the State of Oregon to prohibit the use of sulfites in fresh foods and foods to be consumed without cookingi.Y’ ORS 616.077(2). (Emphasis supplied.) Therefore, the statutes prohibit the sale of all sulfite-treated foods in restaurants, regardless of whether the substance was added by the restaurant or by the growers or distributors.

Relying on a restrictive interpretation of the term “use,” petitioners contend that the phrase “the use of sulfites * * * by any restaurant,” as employed in ORS 616.073, means only a restaurant’s application of sulfites as a food additive. Division responds that a broader interpretation of the term “use” is required, making the prohibition applicable to food to which food growers or distibutors have added sulfites. Given the ambiguity in the statute, it is appropriate to consider legislative history. See Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 484-85, 753 P2d 939 (1988).

Before adoption of ORS 616.073, Division promulgated temporary rule OAR 333-32-027(1):

“Unless the [restaurant provides notice of sulfite use and hazards], sulfur dioxide [and other sulfating agents] shall not be used in solution to dip, soak, spray or rinse food products nor may these chemicals be added to or mixed singly or in combination to any food product in any establishment subject to OAR 333-32-001 through 333-32-272. * * * Fresh vegetables, fresh salad items and fresh fruits to which these items have been added during processing or handling before delivery to an establishment shall not be served.” (Emphasis supplied.)

In 1985, the legislature enacted ORS 616.073 to ban all use of sulfites in restaurants. Representative Schoon explained the bill before the Senate Committee on Business, Housing and Finance:

“The Health Department has devised rules that are almost identical to the ones we’ve put into the Bill, so the statutory language is not really going to do anything more than the Health Department is doing right now — It only applies to fresh produce that is utilized in the state — The question could be asked, I suppose: Why do we need statutory language if we have a rule that deals with this and I think that it’s a case where one of our departments acted properly before we had statutory language dealing with something that is very, very dangerous. And so, we felt strongly enough about this — We felt it was a health issue, a consumer protection issue, that we felt that we ought to go ahead and put it in the statutes.

“Chairman: John, did he — In talking around with some people in the Senate a long time ago, I recall discussions about their actually spraying sulfites on large railroad cars with lettuce, etc. Does this apply — Do these rules apply to that kind of activity? Are we talking — Are you really — Is it just the restaurants or does it go beyond?

“Rep. Schoon: No, it goes beyond that. It also goes to the distributors. They are prohibited from distributing in Oregon produce — fresh produce, again, only that has been sulfite treated.” Senate Committee on Business, Housing and Finance, Minutes, June 13, 1985, p 2. (Emphasis supplied.)

It is clear that the legislature intended by ORS 616.073 and ORS 616.077 to prohibit the sale of all sulfite treated foods, regardless of when, where or by whom the food was treated with the chemical. OAR 333-151-010(4) gives effect to that intent. It is, therefore, within the legislative grant of authority.

OAR 333-151-010(4) held valid.²

1 Petitioners are also parties to appellate review of a circuit court case which challenges OAR 333-151-010(4) under ORS 183.484: Calif. Table Grape Comm’n v. Dept. of Human Res., 109 Or App 222, 818 P2d 985 (1991). This proceeding was held in abeyance pending determination of the jurisdictional question in Calif. Table Grape Comm’n v. Dept. of Human Res., supra.

2 Petitioner’s other arguments do not require discussion.