Circuit Judge (dissenting):
A majority of the court holds that the official inspection legends challenged herein are not “false or misleading,” and that therefore the products inspected are not “misbranded,” because the products are not to be considered “adulterated” merely by reason of the presence of salmonellae. They further hold that the Secretary did not abuse his discretion when he decided against cautionary la*336bels and instead embarked on a consumer education program. I must dissent because I am unable to conclude that on these branches of the litigation “there is no genuine issue as to any material fact.” 1 I would accordingly reverse the summary judgment that the District Court awarded appellees and remand the case for trial.
Meat or poultry is not “adulterated” within the meaning of the relevant statutes if the presence of salmonellae “does not ordinarily render it injurious to health.”2 The court apparently takes the position that meat and poultry “ordinarily” pose no threat of salmonellosis, because American consumers are aware of the problem and familiar with the precautions necessary to prevent its occurrence. That, however, is a debatable proposition, and appellants, with substantial backing, seriously dispute it. The record contains facts supporting appellants’ assertion that people are not generally aware of the danger of salmonellae, much less of the safeguards required to avoid salmonellosis. Moreover, a study conducted for the Department of Agriculture and the Food and Drug Administration states that “the vast majority of the public and personnel of various food-associated industries barely know that salmonellae exist. Many of them have suffered from salmonellosis, but they do not know why or how to avoid future incidents.” 3 Nor is it any clearer that salmonellae in food do not ordinarily render it injurious to health. Meat, particularly pork, and poultry are likely to contain salmonellae when they reach the kitchens of our homes and restaurants,4 and each year more than two million people in this country contract salmonellosis.5
I am also unable to accept the court’s premise that labeling nonadulterated meat “Inspected and passed” is never false and misleading. An article is “misbranded” if its label is “false or misleading in any particular,”6 and the Secretary is authorized to require informative legends to prevent false and misleading labeling.7 In Armour & Company v. Freeman,8 the leading case in this jurisdiction on mislabeling, we held that the question whether a label is false or deceptive is to be determined by the ordinary meaning of the words used.9 More recently, in Federation of Homemakers v. Butz,10 we concluded that a label was misleading because of the meaning its words imparted to the ordinary consumer.11 As appellees concede, “the proper measure of whether [the labels] are misleading is the ordinary understanding of the consumer,”12 and that is a matter *337for proof by the parties, not surmise by the court.
My colleagues try to support their holding by the claim that Congress “did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.” That observation, I submit, is wide of the mark. Congressional intent is not helpful in determining whether the labels are misleading; the relevant inquiry is the understanding of consumers. Appellants proffer evidence tending to show that consumers in large numbers understand the challenged labels to mean that the Federal Government has inspected the labeled food products for the presence of salmonellae.13 That indication is false, for no such inspections are ever made, and labeled products are “passed” even if they contain salmonellae. I am mindful of appellees’ argument that pamphlets published by the Department of Agriculture prevent such “consumer overreliance.” Consumer reaction to the pamphlets, like consumer reaction to the official legends, is a material fact that remains at issue in this case.
The court also rejects appellants’ contention that the Secretary has abused his discretion by substituting a consumer education program for the requested cautionary labels. Although the legislation in suit nowhere mentions educational programs as measures authorized for avoidance of false or misleading labeling, it may be assumed for present purposes that the Secretary has discretion to try to cure misbranding by such a program. But this assumption does not lead to affirmance of the summary judgment appealed from. The Secretary certainly does not have discretion to substitute a totally ineffectual program for the statutorily-required warning labels on the products. If the court’s point is ever to be made, there must be suitable judicial inquiry into the impact, past and potential, of the nationwide effort it mentions.14 I do not propose a substitution of our judgment for the Secretary’s; I merely suggest that there is another material fact in issue that precluded summary judgment.15
For these reasons, I would hold that summary judgment was improper. I would reverse that judgment and remand the case for a trial to settle the material factual issues that are yet to be suitably resolved.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.ORDER
PER CURIAM.It appearing that appellants’ suggestion for rehearing en banc having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having this case reheard en banc, it is
Ordered by the Court en banc that the aforesaid suggestion for rehearing en banc is denied.
Statement of Circuit Judge LEVEN-THAL as to why he voted to deny rehearing en banc.
What most troubles me about this case is the issue whether Congress may have *338intended the Secretary to act on the label problem in cases like this, where all consumers now see is the affirmative label of “Inspected and passed” and there are health problems that are not generally known. Judge Robb’s opinion says (167 U.S.App.D.C. at p. -, 511 F.2d at p. 335) that the Secretary was not unreasonable in concluding that “warning labels were not the answer to the problem and that the solution was a consumer education program which the Department proposed to undertake.” It seems reasonable to suppose, as Judge Robinson was willing to assume for purposes of his dissent (167 U.S.App.D.C. at p. -, 511 F.2d at p. 337), that the Secretary’s discretion does embrace the possibility of using education to warn about particular problems. If so, his choice of education rather than labeling would likewise be a matter within his discretion, at least in the first instance. Compare Philadelphia TV Broadcasting Co. v. FCC, 123 U.S. App.D.C. 298, 300, 359 F.2d 282, 284 (1966). Whether the Secretary’s decision to rely solely on education programs amounts to an abuse of discretion depends on whether the consumer education program is a reasonable and realistic one. This is particularly important since public education is not mentioned in the statute, and must be implied, whereas informative legending is expressly directed by the statute. On an issue like the effectiveness of education programs, it is consistent with the public interest, in my view, to provide an opportunity to demonstrate the matter in the light of experience, rather than to proceed solely by way of testimony of forecasts. See American Airlines, Inc. v. CAB, 123 U.S. App.D.C. 310, 319, 359 F.2d 624, 633 (en banc), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966).
At least as of now the Secretary is not ignoring the salmonella problem. The matter has also been the subject of an investigation by the General Accounting Office, which made its report on July 22,' 1974. I do not read the Court’s decision to preclude a new challenge if it develops that consumer education programs prove inadequate to provide realistic protection, and the Secretary resists any further measures.
Chief Judge BAZELON and Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, vote to grant rehearing en banc.. Fed.R.Civ.P. 56(c). Appellees had the burden of demonstrating the absence of any issue as to all material facts, and appellants were entitled to the benefit of any favorable inferences that could be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Bloomgarden v. Coyer, 156 U.S.App. D.C. 109, 114-115, 479 F.2d 201, 206-207 (1973); Leonard v. BHJK Corp., 152 U.S.App. D.C. 97, 99, 469 F.2d 108, 110 (1972); Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App.D.C. 297, 300, 371 F.2d 950, 953 (1966), cert. denied, 386 U.S. 911, 87 S.Ct. 859, 17 L.Ed.2d 784 (1967).
. 21 U.S.C. §§ 453(g)(1), 601(m)(l) (1970).
. United States Department of Agriculture & Food and Drug Administration, An Evaluation of the Salmonella Problem 16 (1969). See note 14, infra.
. Id at 2.
. Id at 6.
. 21 U.S.C. §§ 453(h)(1), 601(n)(l) (1970).
. 21 U.S.C. §§ 453(h)(12), 601(n)(12) (1970).
. 113 U.S.App.D.C. 37, 304 F.2d 404, cert. denied, 370 U.S. 920, 82 S.Ct. 1559, 8 L.Ed.2d 500 (1962).
. Id at 43, 304 F.2d at 410 (Prettyman, J., concurring).
. 151 U.S.App.D.C. 291, 466 F.2d 462 (1972), affg 328 F.Supp. 181 (D.D.C.1971). In its discussion of Federation of Homemakers v. Butz, the Court seems to misconstrue appellants’ argument. They are not claiming that the present labels will mislead consumers into abandoning “customary methods of preparing food.” On the contrary, they assert that the present labels perpetuate the customary methods that unfortunately result in two million cases of salmonellosis each year.
. Id. at 294-295, 466 F.2d at 465-466. The District Court in that case also based its result on the meaning of the legend’s words to the ordinary consumer. 328 F.Supp. at 184.
. Appellees’ Brief at 7.
. In a governmental survey, 39% of those questioned responded that they thought federal or state inspectors examined meat and poultry for the presence of salmonellae. Comptroller General of the United States, Salmonella in Raw Meat and Poultry: An Assessment of the Problem 26 (1974).
. A governmental study found that only 26% of the people questioned knew what salmonella was; only 34% knew how to minimize the spread of salmonellae bacteria in meat and poultry. Id. at 26. Indeed, if the record supports any conclusion in this regard, it is that any educational efforts to date have been a dismal failure. See note 13, supra, and text supra at note 3.
. I also note the District Court’s thesis that it would be “virtually impossible” to place a label on meat and poultry that would adequately inform consumers about the prevention of salmonellosis. This question was not argued in the District Court, and appellants had proposed labels prior to litigation that they thought sufficient. Beyond that, the observation assumes a material fact still in issue.