INTERNATIONAL OIL FACTORY (CHENG BAN YEK CO., INC.) ET AL., PETITIONERS AND APPELLEES, VS. THE DIRECTOR OF HEALTH, ET AL., RESPONDENTS AND APPELLANTS. PHILIPPINE REFINING CO., A…

Appeal from a decision of the Court of First Instance of Manila declaring
Food and Drugs Act Administrative Decisions Nos. 268 and 269 null and void and
permanently enjoining the respondents from enforcing the same.

This is an action for prohibition and preliminary injunction to restrain the
enforcement of said Food and Drugs Act Administrative Decisions, hereinafter
referred to as FDAD, which provide that hydrogenated vegetable lard and
hydrogenated vegetable oil “shall have no more than 25% air content” to be
determined in the manner stated in FDAD No. 268—issued by respondent Director of
Health, upon the recommendation of the Board of Food Inspection and with the
approval of respondent Secretary of Health—upon the ground that the regulation
therein contained is null and void, it being in excess of the authority vested
in said officers by the provisions of the Food and Drugs Act, pursuant to which
they purported to act.

Aside from asserting that said regulation is illegal, petitioners herein,
namely, International Oil Factory (Cheng Ban Yek Co., Inc.), Central Vegetable
Oil Manufacturing Co., Royal Oil Products, Inc., and Liberty Oil Products, Inc.,
alleged in their petition that they manufacture hydrogenated vegetable lard and
hydrogenated vegetable oil, which are not adulterated, misbranded, deleterious
or harmful upon human health, and are being sold in containers which have
clearly printed thereon the net weights of their contents, on which the prices
are based; that the enforcement of said regulation will cause irreparable
injury, without due process of law, to their properties, business and rights,
for they will have to change their formulas for the manufacture of their
vegetable land and vegetable oil, order new containers, discard their present
stock of containers, and the dealers who have purchased such manufactured lard
and oil will return thair unsold stock to petitioners, whose production and
sales schedules would, accordingly, be adversely affected thereby; that the
enforcement of said regulation would, likewise, prejudice, not only over 1,000
employees and laborers that petitioners would have to lay off, but, also, the
dependents of said employees and laborers, numbering over 5,000, aside from the
industries from, which petitioners derive their materials for the production of
their vegetable lard and vegetable oil; fend that said regulation would merely
benefit some competitors of petitioners herein, who, accordingly, prayed that,
apart from declaring said regulation null and void, a writ of preliminary
injunction restraining its enforcement be issued pendente lite.

Upon the filing of a bond in the sum of P20,000, the Court of First Instance
of Manila issued the writ of preliminary injunction prayed for.

In their answer, respondents Director of Health, Commissioner of Customs,
Collector of Internal Revenue and Secretary of Health alleged that the
regulation in question had been issued in conformity with law and within the
scope of their authority, because the maximum of 25% aeration for hydrogenated
vegetable lard and hydrogenated vegetable oil, is much more than what is
necessary—from 10% to 12%—to produce the whitish appearance desired in food
shortenings; because said maximum of 25% will be beneficial, not only to the
consuming public, but, also, to ths manufacturers, for the lesser aeration will
involve lesser bulk and, hence, better quality, as well as smaller containers
and, consequently, lesser cost of production, lower prices and greater margin of
profits; and because said regulation minimizes deception upon ignorant and
unsuspecting consumers.

The Philippine Refining Co., Inc. and the Philippine Manufacturing Co.
intervened in the case and filad an answer sustaining the legality of the
regulation in question, and alleging that the same was adopted after due hearing
held by the Board of Food Inspection.

After due trial, at which the parties introduced their respective evidence,
and after the submission by them of extensive memoranda, the lower court
rendered the aforementioned decision in favor of the petitioners. Hence, this
appeal by the respondents.

The reason for the introduction of air into vegetable lard and vegetable oil
intended for shortening was explained by Mrs. Pesigan, Chief Research Chemist of
the Public Health Research Laboratory of the Department of Health. Her
explanation is summed up in appellants’ brief as follows:

“* * * the only reason why air is introduced into shortening is to make it
appear and give it a white color, thus making it more attractive to the
consumer. She pointed to the authoritative book on Industrial Oils and Fats by
Alton Bailey, wherein it is stated on page 920 (Exhibit 19, p. 237, rec.) that
an air content of 10-12% in shortening serves to give it a sufficient white and
opaque, rather than a translucent appearance (pp. 479-480, t.s.n.). She assured
the court that the samples she had examined with air content ranging from 18% to
54% were all white and there was practically no difference in whiteness (p. 480,
t.s.n.). She said that, weight for weight, one brand of shortening which
contains say 50% air will appear more voluminous compared to a similar quantity
of shortening with less air and the public is likely to be deceived because
purchasers usually judge quantity by size (pp. 470-471,
t.s.n.).”

Moreover, the lower court found, and the accuracy of this finding is not
assailed, that:

“There is conflict in the evidence as to whether a high aeration in
shortening would facilitate dispensing and hand packing thereof, give more body
to the product, require less time in beating the mixture for making bread and
ooze harder than shortening with lower aeration. However, there is no dispute
that air has no weight; that shortening is sold by petitioners and two American
firms interested in upholding the questioned decision and other manufacturers by
the net weight, and not by the volume; that air is introduced into shortening in
order to give it the appearance of opaqueness instead of transluscent; that air
introduced into shortening has no deleterious effect on the human body or
health; that petitioners sell their shortening in containers which have clearly
printed thereon the net weights of their contents. Air in shortening does not
reduce or lower or injuriously affect its quality or strength, nor is air
substituted in part for shortening within the purview of section 1115(c), first
and second cases, Revised Administrative Code”.

The question for determination is whether the contested regulation falls
within the powers delegated under section 1121 of the Revised Administrative
Code, reading:

“With the approval of the Secretary of (Public Instruction) Education, the
Director of Health, the (Insular Collector of Customs) Commissioner of Customs,
and the Collector of Internal Revenue shall make and promulgate regulations for
the enforcement of the Food and Drugs Act. In such regulations provisions shall
be made for the collection of samples of foods and drugs for
examination”.

Respondents admit that the regulatory powers referred to in said section 1121
are limited to those which are “for the enforcement of the Food and Drugs Act”,
particularly, insofar as this case is concerned, section 1115 of the Revised
Administrative Code, which we quote:

“When article deemed to be adulterated.—For the purpose hereof, an
article shall be deemed to be ‘adulterated’:

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“In case of food:

First. If any substance has been mixed and packed with it so as to
reduce or lower or injuriously affect its quality or strength.

Secondly. If any substance has been substituted wholly or in part for
the article.

Thirdly. If any valuable constituent of the article has been wholly or
in part abstracted.

Fourthly. If it can be mixed, colored, powdered, coated, or stained in
a manner whereby damage or inferiority is concealed.

Fifthly. If it contains any added poisonous or other added deleterious
ingredient which may render such article injurious to health; but when in the
preparation of food products for shipment they are preserved by any external
application applied in such manner that the preservative is necessarily removed
mechanically, or by maceration in water, or otherwise, and directions for the
removal of said preservative shall be printed on the covering or the package,
the provisions of this article shall be construed as applying only when said
products are ready for consumption.

Sixthly. If it consists in whole or in part of a filthy, decomposed,
or putrid animal or vegetable substance, or any portion of an animal unfit for
food, whether manufactured or not, or if it is the product of a diseased animal,
or one that has died otherwise than by slaughter.”

It is, likewise, conceded that the regulation in question does seek to
proscribe cases falling under the third, fourth, fifth and sixth subdivisions of
paragraph (c) of said section 1115. They maintain, that the regulation is
sanctioned by the first and second subdivisions of said paragraph (c), pursuant
to which food is adulterated:

“First. If any substance has been mixed and packed with it so as to
reduce or lower or injuriously affect its quality or
strength.

“Secondly. If any substance has been substituted wholly or in
part for the article.”

The issue hinges, therefore, on whether an air content of more than 25%
“reduces”, or “lowers”, or “injuriously affects” the “quality or strength” of
vegetable lard or vegetable oil, or whether, in consequence thereof, “any
substance has been substituted wholly or in part” for such vegetable lard or
vegetable oil.

Upon a review of the record, we are satisfied that the answer must be in the
negative. As a matter of fact, respondents-appellants do not claim that aeration
in excess of 25% will “reduce” the “quality or strength” of said product, or
either “lower” the same, or “injuriously affect” it. Neither is it contended
that when the air content exceeds 25%, “any substance” is “substituted wholly or
partly for the article” in question, which is vegetable lard or vegetable oil.
Indeed, to substitute is to put in the place of, change for, make way for, take
the place of another. It implies that something is taken away or removed
and that something else is placed in lieu thereof. Thus, the case of
Barren Country Canning & Pickle Co. vs. Niana Pure Food Co. (211 N.
W. 764), relied upon by respondents, involved the substitution of peas by brine,
which took the place of a substantial portion of the contents of canned peas,
and thus reduced the amount of peas contained in each can. Similar was the
situation in the case of Houston v. St. Louis Independent Packing Co. (63 L. ed.
717)—likewise cited by respondents—which referred to a regulation limiting the
amount of cereal and water that may be contained in or added to sausages.
Considering that sausages consist mainly of beef and pork placed Inside limited
containers, it is clear that any amount of cereals and/or water added thereto
would reduce the amount of beef and pork contained in the sausage, and, hence,
take its place or substitute it in part, aside from affecting its weight.

These two (2) cases have no parity with the one at bar. Aeration in the case
of shortening, eliminates, removes or takes away no lard or oil. All of it
remains in the shortening. Air does not take, the place of any lard or
oil. It merely makes it more opaque and more bulky. But the weight
of the vegetable lard or vegetable oil is not changed, because air has no
weight. In other words, the degree of aeration prohibited by FDAD No. 268 does
not involve a case of substitution falling under the second subdivision of
paragraph (c) of said section 1115.

The main argument of respondents is that aeration in excess of 25% has a
deceptive effect insofar as “quantity” is concerned, referring evidently to
“volume”, not to weight, because, “weight for weight, shortening containing more
air will appear bigger in volume than one with less air” (Appellants’
brief, p. 7). Realizing, however, that petitioners sell shortening by the
weight, and that the containers of petitioners’ shortenings have clearly printed
thereon the net weight of its contents, respondents allege that the regulation
in question seeks to avoid deception upon the public, for greater aeration or
hydrogenation results in a greater bulk, and the unsuspecting buyers,
particularly those purchasing by the slice or scoop (“tingi”) are likely to
believe erroneously that they get more lard when buying petitioners’ products
than when they purchase those of other producers.

At the outset, it should be noted, however, that the issue is, not whether
Congress, in the exercise of the police power of the state, could have
validly issue the disputed regulation, but whether the same is within the
powers delegated to respondents herein by section 1121, in relation to
the first two (2) subdivisions of paragraph (c) of section 1115 of the Revised
Administrative Code. Secondly, under the aforementioned subdivisions, a food is
not adulterated merely because it has greater bulk than another of similar kind.
Thirdly, although all forms of adulteration connote some kind of deception, not
every deception results in adulteration. Under the aforementioned section 1115,
a given food is adulterated if it falls under the forms of deception therein
enumerated. As a consequence, other forms of deception with respect to food do
not adulterate the same within the purview of the Food and Drugs Act, although
Congress may include therein such other forms of deception if it wishes to do
so. Fourthly, aside from the fact that petitioners’ shortenings are sold by net
weight, which is clearly printed on the containers thereof, it has been proven
that petitioner International Oil Factory sells shortenings even in small
packages containing 20 grams at P0.05 each package. Fifthly, as pointed out in
the decision appealed from:

“* * * It is noteworthy that manufacturers have no hand in the disposition by
retail stores of their products. If regulation on the matter be necessary, the
remedy lies with the legislature or municipal council to require retailers to
give appropriate and prominent notice of aeration of shortening they are
selling.”

Lastly, there is every reason to believe that deception, as regards
“quantity” of the food is concerned was not really meant to be considered a case
of adulteration governed by section 1115, for the pertinent rule is found in
section 1116, from which we quote:

“When article deemed to be misbranded.—’Misbranded‘, as herein
used, shall apply to all drugs, or articles of food, or articles which enter
into the composition of food, the package or label of which shall bear any
statement, design or device regarding such article, or the ingredients or
substances contained therein, which is false or misleading in any particular,
and to any food or drug product which is falsely branded as to the State,
Territory, or country in which it is manufactured or produced.

“For the purposes hereof, an article shall also be deemed to be
misbranded:

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“(b) In case of food.

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Thirdly. If in package form, the quantity of the contents be not plainly and
conspicuously marked on the outside of the package in terms of weight, measure,
or numerical count; but reasonable variations shall be permitted, and tolerances
and also exemptions as to small packages shall be established by proper
regulations.”

In conclusion, we hold that the Food and Drugs Act Administrative Decisions
Nos. 268 and 269 were rendered or issued in excess of the powers delegated by
law to respondents herein, and, accordingly, the decision appealed from is
hereby affirmed, without special pronouncement as to costs. It is so
ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Paredes, Dizon, De Leon, and Natividad, JJ., concur.