Processed Apples Institute, Inc. v. Department of Public Health

Liacos, J.

In this action for declaratory and injunctive relief, the plaintiffs claim that: (1) the Federal government has estab*393lished a tolerance3 for daminozide residue in processed apple products; (2) therefore, under G. L. c. 94, § 192 (1986 ed.), a State tolerance for daminozide residue in processed apple products is invalid in that it is more restrictive than the Federal tolerance; and (3) other provisions of State law do not abrogate the requirements of G. L. c. 94, § 192.4 A judge of the Superior Court in Suffolk County ordered summary judgment for the defendants. The plaintiffs appeal. It is unnecessary to decide whether the Federal tolerance of twenty parts per million (ppm) of daminozide residue, established for raw apples pursuant to 21 U.S.C. § 346 a, by virtue of 21 U.S.C. § 342 (a) (2) (C) (1982), “passes through” to govern processed apple products. For the sake of argument, we assume that a Federal tolerance is established in this regard. We conclude, however, that under applicable State law the Department of Public Health (department) may establish tolerances more stringent than comparable Federal provisions.5

General Laws c. 94, § 192 (1986 ed.), provides in pertinent part that any standards, tolerances, and definitions of purity or quality or identity for food that the department adopts “shall conform to the standards, tolerances and definitions, if any, of purity or quality or identity” adopted for the enforcement of Federal law (emphasis added). In American Grain Prods. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 315 (1984), we held that, under this section, a Federal decision against setting a standard, tolerance, or definition for a *394particular chemical pesticide is not binding on the department. Indeed, an examination of c. 94 and of American Grain Prods., supra, indicates that the over-all purpose of § 192 is to enable the department to conform its standards, tolerances, and definitions to at least the Federally established mínimums. While Federal levels usually will provide a beacon, leeway is allowed for independent State determinations. Our review of the history of c. 94, § 192, revealed that the Legislature, in amending the provision in June, 1948, St. 1948, c. 598, § 6, intended to overrule the Attorney General’s opinion “that it was the legislative intent that rules and regulations under § 192 should be for the purpose of implementing the Federal law referred to in § 192. Rep. A.G., Pub. Doc. No. 12, at 58 (1948).” Id. at 315. A State law simply mimicking existing Federal provisions would serve little purpose.

Section 186 of c. 94 buttresses our interpretation of § 192. This court has recognized already that these two sections should be construed harmoniously. Id. at 316-317. See Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70, 76 (1979) (grants of detailed authority in various sections of G. L. c. 94 do not limit department’s ability to deal with matters under more general provisions of the chapter). Consonant with the mandate in § 192 that the department shall “conform” its definitions to Federal law, § 186 nonetheless “does not limit its definition of adulterated food to food which is adulterated within the meaning of the Federal act. ” American Grain Prods., supra at 317 n. 12. The department may ban altogether a particular pesticide chemical although Federal law allows its use. Id. at 317. It would be illogical to construe these sections as permitting the department to ban completely a chemical pesticide which Federal law allows, while prohibiting it from setting more stringent regulations for use.

For the reasons stated above, we are unpersuaded by the plaintiffs’ bald assertion that the stricter standards set for certain processed apple products are necessarily “nonconforming” within the meaning of the statute. “An agency, of course, has considerable leeway in interpreting a statute it is charged with enforcing.” Grocery Mfrs., supra at 75, and cases cited.

*395Finally, the plaintiffs argue that this court need not decide whether, under c. 94, § 192, conformity always necessitates identity with Federal provisions because, so they claim, in the case at bar, the State action levels do not conform to Federal requisites under “any reasonable interpretation of § 192.” To the extent this is an argument that the department’s action levels are arbitrary or capricious, the record does not support the claim. See American GrainProds., supra at 329, and cases cited (burden met only by proving absence of any conceivable ground to uphold rule).

Judgment affirmed.

A tolerance or action level is the maximum concentration of a substance allowed by law. See American Grain Prods. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 312 & 313 nn. 5 & 7 (1984); 21 U.S.C. § 346 (1982 & Supp. IV 1986).

The issue of Federal preemption is not before this court. A single justice of the Appeals Court granted the plaintiffs’ motion for voluntary dismissal without prejudice of the two counts concerning Federal law, on condition that the plaintiffs file a stipulation to stay related proceedings on those counts in the United States District Court until final disposition of the matter before us.

Under 105 Code Mass. Regs. § 515.008 (1984) (effective October 1, 1986), the action levels for daminozide residues in heat processed apple sauce and juice products is 5 ppm, and in infant and baby foods it is 1 ppm.