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Administrative Law Keyed to Funk
Chocolate Manufacturers Association v. Block
Citation:
755 F.2d 1098 (1985)Facts
The WIC Program was established in 1972 to provide supplemental foods to women, infants, and children from low-income families at nutritional risk. Since the program’s inception in 1973, flavored milk had been an acceptable substitute for fluid whole milk. In 1978, Congress amended the statutory definition of “supplemental foods” to emphasize nutritional content and directed the Secretary to ensure appropriate fat, sugar, and salt content in prescribed foods. In November 1979, the USDA published a proposed rule that continued to allow flavored milk in the WIC Program. The preamble to the rule discussed concerns about high sugar content in cereals and juices but did not mention sugar concerns related to flavored milk. After receiving comments, including 78 recommending deletion of flavored milk due to high sugar content, the USDA issued a final rule in 1980 that eliminated flavored milk from the program. CMA, which had not submitted comments because it believed flavored milk’s status was not at issue, petitioned USDA to reopen the rulemaking to allow comment on this change. USDA initially agreed but later declined to reopen the process.
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