its emergency ration; that the Red Cross had also used large quantities of it for undernourished persons abroad, and annexed to its application letters from eminent physicians and other authorities.
The Administrator refused to hold a public hearing, saying that no reasonable ground was shown for holding it. Thereupon, plaintiff brought this suit, seeking a declaratory judgment, and to direct the Administrator to hold a public hearing upon plaintiff's application, and that the court determine that the plaintiff's product Vita Sert does not violate the Cacao products regulation established by the Federal Security Administrator.
The defendant, the Federal Security Administrator, has moved to dismiss the complaint on the ground that the court is without jurisdiction and that the complaint fails to state facts sufficient to constitute a cause of action. As to the question of jurisdiction he contends that the action of the Administrator is a discretionary one and that the court has no power to review it. However, if the foregoing allegations of the petition filed with the Administrator are true, the action of the latter is clearly arbitrary. His power to fix regulations is given whenever 'in the judgment of the Administrator such action will promote honesty and fair dealing in the interest of consumers' and his holding that the plaintiff's application did not show reasonable grounds was not based upon this power but apparently upon some general authority not vested in him by the statute to define whether or not the addition of vitamins to chocolates to be used as a confection would be used by the public in sufficient quantities to justify a new regulation or an amendment to the existing regulation. See Perkins v. Elg, 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320.
So far then, as the action of the Administrator in denying plaintiff's application is concerned, the motion to dismiss the complaint will be overruled.
As to plaintiff's right to declaratory judgment as to whether or not its product Vita Sert is barred by the defendant's regulation, this question is governed by the case of Helco Products Co., Inc. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345. As to that and also as to the defendant, the Attorney General, the motion to dismiss will be sustained.
© 1992-2004 VersusLaw Inc.