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FOOD CHEM. NEWS, INC. v. DAVIS

June 28, 1974

FOOD CHEMICAL NEWS, INC., Plaintiff,
v.
Rex D. DAVIS, Director, Bureau of Alcohol, Tobacco and Firearms Department of the Treasury, Washington, D.C., Defendant


Charles R. Richey, District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, District Judge.

 The issue before this Court is whether the two separate "informal" meetings with consumer and distilled spirits industry representatives relative to drafting proposed regulations of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department (hereinafter, "Bureau"), on ingredient labeling of distilled spirits were meetings of "advisory committees" utilized by Defendant Rex Davis, Director of the Bureau, to obtain advice within the meaning of Section 3(2) of the Federal Advisory Committee Act of 1972 (hereinafter, "Act"), 5 U.S.C. App. I, and, therefore, "open to the public". 5 U.S.C. App. I & 10(a)(1). The Court has concluded that the two meetings in question were subject to the Act and, accordingly, the Defendant was required to provide public access to each meeting pursuant to Section 10(a)(1) of the Act and to follow the Act's procedural requirements. The Court will, therefore, grant Plaintiff's Motion for Summary Judgment and enjoin the Defendant and his agents, servants, and employees from convening any future meetings of the advisory committees discussed herein, or meetings of any of their advisory committees, without complying fully with the Act's requirements, and from excluding plaintiff or its agents or employees from any such meetings in contravention of the Act.

  I

 BACKGROUND

 Plaintiff Food Chemical News, a weekly trade journal that reports generally on matters concerning the Government regulation of food products and chemicals, brought the instant action under the Federal Advisory Committee Act of 1972 to compel Defendant Davis to open to the public certain meetings he scheduled separately with consumer and industry groups. In an effort to delay the meetings until the public access issue could be effectively resolved, Plaintiff applied to the Court for a Temporary Restraining Order seeking to enjoin the Defendant from holding the meetings unless Plaintiff would be permitted to send a representative to them. On February 4, 1974, Judge Corcoran of this Court, sitting as motions judge, denied Plaintiff's application, but set down a date for argument on Plaintiff's Motion for a Preliminary Injunction and Defendant's Motion to Dismiss which were heard by this Court on February 13, 1974. In light of the fact that both meetings had already taken place at the time of oral argument before the Court, the parties agreed to stipulate that the case could be disposed of as a matter of law and their respective motions could be treated as cross motions for summary judgment. In addition, the parties reached agreement upon and ultimately filed with the Court a stipulation of material facts which are not in dispute. Such is the present posture of this case. The Court has jurisdiction pursuant to the provisions of 28 U.S.C. § 1361 and 5 U.S.C. §§ 702-704.

 The undisputed facts indicate that the Bureau is presently considering amendments to 27 C.F.R. Part 5, which covers the labeling and advertising of distilled spirits, and in this regard has prepared a draft of several proposed amendments to the regulations set forth therein. Prior to the commencement of this suit, the Director of the Bureau, Defendant Davis, obtained the preliminary views of representatives of interested industry and consumer committees respecting the proposed amendments and scheduled separate meetings with these groups to discuss the proposals and obtain the group's "comments or suggestions". (See Exhibit A to the Amended Complaint) These meetings were intended to precede any notice of the proposed rulemaking or notice of a public hearing in the Federal Register.

 Plaintiff, by letter of January 24, 1974, advised the Defendant that Plaintiff was entitled to send a representative to both meetings pursuant to Section 10(a)(1) of the Act, which provides in pertinent part:

 
" Each advisory committee meeting shall be open to the public." 5 U.S.C. App. I § 10(a)(1).

 Plaintiff sought access to the meeting in order to report to the public on the discussion and recommendations behind closed doors of these groups as to the Bureau's proposed regulations pertaining to the alleged widespread use of artificial colorings and synthetic chemical preservatives in the preparation of wine, beer and distilled spirits. At present such ingredients and additives are not fully listed on the labels of these products as offered to the consumer. In response, the Defendant denied that the Act indeed applied to the scheduled meetings and explained that the meeting would be closed to the public and, therefore, members of the press such as Plaintiff would be excluded. Plaintiff then brought the instant action and shortly thereafter the Defendant met separately with the two groups in question.

 II

 THE DEFENDANT'S UTILIZATION OF THE INDUSTRY AND CONSUMER COMMITTEES IN ORDER TO OBTAIN ADVICE ON THE DRAFT AMENDMENTS TO AGENCY REGULATIONS SUBJECTS THE COMMITTEES TO THE STRICT PROCEDURAL REQUIREMENTS OF THE ADVISORY COMMITTEE ACT INCLUDING, AMONG OTHER THINGS, THAT MEETINGS BETWEEN THE DEFENDANT AND PRIVATE INDIVIDUALS COMPRISING THE COMMITTEE BE ACCESSIBLE TO THE PUBLIC

 It is the Court's opinion that the industry and consumer committees were "advisory committees" within the meaning of Section 3(2) of the Act which reads in pertinent part:

 
The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or any other subgroup thereof (hereinafter in this ...

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