## Facts

- Congress created the WIC program to provide nutritional assistance to low-income pregnant, postpartum, and breastfeeding women, infants, and young children at nutritional risk.
- USDA administers WIC by setting food-package regulations and funding state and local agencies that distribute approved foods or vouchers.
- USDA regulations had long permitted flavored milk as a substitute for whole milk in WIC packages for women and children (not infants), consistent with program practice since WIC’s early years.
- In 1979, USDA issued a notice of proposed rulemaking to revise WIC food packages, emphasizing reduction of high-sugar foods and proposing sugar limits focused mainly on cereals.
- The proposed regulatory text expressly listed flavored milk as an approved item for women and children without special dietary needs.
- During the comment period, some commenters urged USDA to remove flavored milk due to its sugar content.
- In the final rule, USDA deleted flavored milk from the approved foods list for women and children.
- The Chocolate Manufacturers Association (CMA) challenged the deletion on APA procedural grounds, arguing that USDA had not provided adequate notice that elimination of flavored milk was under consideration and had not adequately justified reversing its prior position.
- The district court upheld the rule; CMA appealed.

## Issues

1. Whether the notice of proposed rulemaking gave adequate notice under the APA that USDA was considering eliminating flavored milk from WIC food packages.
2. Whether USDA supplied a reasoned explanation for reversing its longstanding approval of flavored milk in WIC.

## Decision

- The Fourth Circuit reversed the district court.
- The court held that USDA’s proposal did not provide adequate APA notice that flavored milk might be eliminated.
- The final rule’s deletion of flavored milk was not a logical outgrowth of the proposal, particularly because flavored milk was expressly approved in the proposed text.
- The court remanded to USDA with instructions to reopen the comment period on the flavored-milk issue.
- Because the rule was set aside on notice grounds, the court did not need to definitively decide the adequacy of USDA’s substantive justification for the change.

## Legal Principles

- APA notice must disclose either the terms or substance of the proposed rule, or fairly describe the subjects and issues involved, to permit meaningful public comment.
- A final rule may differ from a proposal in response to comments, but only within the bounds of what interested parties could reasonably anticipate from the notice.
- A final rule must be a “logical outgrowth” of the proposed rule; a substantial, unexpected change requires supplemental notice and an additional opportunity for comment.
- Comments submitted by third parties do not cure inadequate notice; the agency must give notice of the regulatory options it is considering.
- When an agency removes an expressly approved and historically permitted item through a final rule, the agency generally must provide clear advance notice or reopen notice-and-comment procedures.

## Conclusion

The court invalidated USDA’s final-rule deletion of flavored milk from WIC because the agency’s proposal affirmatively signaled continued approval and did not give fair notice that elimination was under consideration, requiring the agency to reopen the comment process before adopting that change.


Chocolate Mfrs. Ass’n of the U.S. v. Block, 755 F.2d 1098 (4th Cir. 1985)