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October 16, 1980


The opinion of the court was delivered by: BIUNNO


This is a suit for review, by trial de novo, of a decision of the Department to cancel or withdraw the certification of Hatuey, a food wholesaler, of authority to deal in stamps under the Food Stamp program. See 7 U.S.C.A. ยง 2023.

 At the hearing on the Department's motion for summary judgment, the court expressed the view that there was a genuine issue of material fact, i. e., whether "ice cream" is a "staple food" under the definitions published as regulatory amendments in the Federal Register. See Vol. 43, No. 185, pp. 43273 et seq.

 Hatuey markets two major products: yogurt and ice cream. It is stipulated that its sales of ice cream to retailers represents some 80% or more of its sales of both ice cream and yogurt, whether measured in pounds, gallons or dollar revenue, on an annual basis. The parties evidently assume that yogurt is a "staple food". The dispute is about the question whether "ice cream" is also a staple food.

 Plaintiff claims that ice cream is a staple food because it is a "dairy product", one of the categories listed in the regulation as "included" in the term, which is not defined except by way of illustration. *fn1" Thus, the Department agrees that butter is a staple food because it is a dairy product. It seems to agree that "cream" is a dairy product, but argues that "ice cream" is not even though the major difference is that "ice cream" includes (usually) egg yolks and sugar, and flavorings or fruits of one kind or another.

 The Department also seems to agree that a wholesaler whose sales ratio is 55% eggs and 45% butter would satisfy the 50% test because both eggs and butter are "staple foods." Eggs are not mentioned in the definition under any category. They are neither fish nor fowl, nor are they meat. They are not fruit (except in the sense of the colloquial term "hen fruit"), nor are they cereal, vegetable, juice, bread or breadstuff, or dairy product.

 Thus, if eggs are a staple food because the fact is obvious, a dispute whether "ice cream" is a staple food even though it is a "dairy product" is obviously a fact issue for trial.

 The underlying Congressional objective for the food stamp program is to provide a financial subsidy to persons of low income who are eligible to obtain and use food stamps to provide nutritious meals at modest cost. In its early years, the Congress tried to express the policy of excluding imported foods from the program to prevent use of the stamps to buy so-called "luxury" items. This approach has been abandoned, perhaps in part because many imported foods are less costly than equivalent domestic foods. Inspection of products on any supermarket shelf will show that such staple foods as mackerel, salmon, crab meat, shrimp and sardines are found in their least expensive form when imported from Canada or Japan, where the supplies are plentiful.

 It is also true that basic, "staple" foods can be prepared at home to produce nutritious and tasty, even "gourmet" dishes. Such staples as a soup chicken, onion, apple, flour, peas, butter, cream and a few spices or condiments such as salt, curry powder, chili pepper and cayenne pepper, can produce an exquisite "Potage Singhalese", see Dione Lucas, "The Cordon Bleu Cook Book" (Little, Brown & Co., 1947), p. 53.

 Similarly, such staple items as tripe, ox feet, onions and leeks, carrots, cider, beef-fat, along with small amounts of flavorings such as a little salt, a pinch of pepper, a few cloves, parsley stalks, thyme and one bay leaf can produce "Tripes a la Mode de Caen", a culinary specialty of Normandy, see A. Escoffier, "The Escoffier Cook Book", (Crown Publishers, N.Y., 1945), p. 400 et seq.

 Another recipe uses staple foods such as squid, bread crumbs, and olive oil, flavored with anchovy, parsley, salt, pepper and garlic, to produce stuffed "calamari", see Bontempi, "The Bontempi Cook Book" (Prentice-Hall, 1965) p. 33.

 Turning to Creole dishes, such staples as onions, butter, flour, milk, egg yolk, bacon and sweetbreads, with a little cooking wine (not regarded as an alcoholic beverage), salt and cayenne pepper, can end up as Ris de Veau Lyonnaise, see Deutch, "Brennan's New Orleans Cookbook" (Crager & Co., 1961), p. 52.

 Even the old, classic textbook for "Home Economics", The Boston Cooking-School Cook Book by Fannie Merritt Farmer, first published in 1896, carried a quotation from Ruskin:


"Cookery means the knowledge of Medea and of Circe and of Helen and the Queen of Sheba. It means the knowledge of all herbs and fruits and balms and spices, and all that is healing and sweet in the fields and groves and savory in meats. It means carefulness and inventiveness and willingness and readiness of appliances. It means the economy of your grandmothers and the science of the modern chemist; it means much testing and no wasting; it means English thoroughness and French art and Arabian hospitality...."

  In the preface to the first (1896) edition, the author said:


"With the progress of knowledge the needs of the human body have not been forgotten. During the last decade (i. e., from 1886 to 1896) much time has been given by scientists to the study of foods and their dietetic value, and it is a subject which rightfully should demand much consideration from all. I certainly feel that the time is not far distant when a knowledge of the principles of diet will be an essential part of one's education. Then mankind will eat to live, will be able to do better mental and physical work, and disease will be less frequent".

 For both the above excerpts, see "The Boston Cooking-School Cook Book". (Little, Brown & Co., 7th Edition, 1942). That edition includes as a "frozen dessert" recipe, one that uses meringue (made of egg white), a sheet of sponge cake (farinaceous), and a brick of ice cream (dairy product), to turn out a Baked Alaska, browned in a 450 degree oven (see pp. 576-577).

 Since the case must be tried, the court urges the parties to make every effort to gather the underlying fact material in as economical a fashion as possible. It is important to emphasize the procedural polestar of Rule 1, F.R.Civ.P., that the rules be so construed as "to secure the just, speedy, and inexpensive determination of every action." (emphasis added).

 Some expert testimony will doubtless be needed. At argument, the court suggested that the parties confer on the selection of a single expert in nutritional science or, if they could not agree, have the court appoint one under Fed.Ev.Rule 706. As a guide, the court supplies a few pages from the layman's educational book, "Food and Nutrition", published by Time, Inc. in 1967 as part of the "Life Science Library". One of the authors is listed as William H. Sebrell, Jr., described as an internationally recognized leader in nutritional science, public health and medical research. At the time of publication, he was Robert R. Williams Professor of Public Health Nutrition at Columbia University, and was director of its Institute of Nutrition Sciences. That information may provide a good source for inquiry for an expert with a broad understanding and an impartial viewpoint.

 Plaintiff might also indicate the forms, if more than one, of its ice cream products and yogurt, and available laboratory analysis of the identity and amounts of its major nutrients, minerals and vitamins, for comparison with other foodstuffs along the lines of the chart at pp. 194-195 of the attachment. Perhaps whole milk might be used as a reference for dairy products.

 In this effort the parties should not hesitate to make informal interim submissions, or request a conference to guide the fact gathering process.

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