Chocolate Manufacturers Association v. Block

755 F.2d 1098 (4th Cir. 1985)


The WIC program was established to assist pregnant, postpartum, and breastfeeding women, infants, and young children whose physical and mental health was in danger because of inadequate nutrition or health care. The Department designed food packages reflecting the different nutritional needs of women, infants, and children and provided cash grants to state or local agencies which distribute cash or vouchers to qualifying individuals in accordance with Departmental regulations as to the type and quantity of food. The program was revised and extended with modifications in 1975 and defined the terms 'supplemental foods.' (See Cass 4th page 422 top). Pursuant to the definition, the Department promulgated new regulations specifying the contents of WIC Program food packages. They specified that flavored milk was ok for women and children but not infants. A new definition of 'supplemental foods' was issued in 1978. There was significant comment on the ills of high content sugar foods, but neither the rule nor the preamble discussed sugar in relation to flavoring milk. The notice to the new 1978 rules gave sixty days for comment to the public. Over 1,000 comments were received but 78 of them, mostly from local WIC administrators, recommended that the agency delete flavored milk from the list of approved supplemental foods. Flavored milk was deleted from the proposed regulations. CMA (P) was upset with the deletion of flavored milk, as the Department did not provide notice that the disallowance of flavored milk would be considered. The district court found in favor of the Secretary (D). P appealed.