Jones v. Rath Packing Co.

Mr. Justice Rehnquist,

with whom Mr. Justice Stewart joins, concurring in part and dissenting in part.

I agree that with respect to Rath’s packaged bacon, § 12211 of the Cal. Bus. & Prof. Code and Art. 5 of 4 Cal. Admin. Code, c. 8, are pre-empted by the express pre-emptive provision of the Federal Meat Inspection Act, 21 U. S. C. § 678 . I also agree that with respect to General Mills’ flour, § 12211 *544 and Art. 5 are not pre-empted by the express pre-emptive provision of the Fair Packaging and Labeling Act (FPLA), 15 U. S. C. § 1461 . I am unable to agree, however, with the implicit pre-emption the Court finds with respect to the flour. This latter pre-emption is founded in unwarranted speculations that hardly rise to that clear demonstration of conflict that must exist before the mere existence of a federal law may be said to pre-empt state law operating in the same field.

With respect to labeling requirements for flour under the scheme contemplated by the FPLA in conjunction with the Federal Food, Drug, and Cosmetic Act, the Court determines that the state-law labeling requirements are neither “less stringent than” nor inconsistent with those federal requirements. This conclusion quite properly dictates the Court’s holding that Congress has not expressly prohibited state regulation in this field. The remaining inquiry, then, is whether the two statutory schemes are in utter conflict. 1 As this Court noted in Kelly v. Washington, 302 U. S. 1, 10 (1937):

“The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive’ that the two acts cannot 'be reconciled or consistently stand together.’ ”

See also Cloverleaf Butter Co. v. Patterson, 315 U. S. 148, 156 (1942); Askew v. American Waterways Operators, Inc., 411 U. S. 325, 337, 341 (1973). When we deal, as we do here, with congressional action “in a field which the States have traditionally occupied,” the basic assumption from which pre- *545 emption must be viewed is “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); cf. De Canas v. Bica, 424 U. S. 351, 356 (1976). I am simply unable to find that this stringent standard has been met in this case.

The Court’s opinion demonstrates that it is physically possible to comply with the state-law requirement “without triggering federal enforcement action,” ante, at 540. This leads the Court to conclude that the “state requirement is not inconsistent with federal law.” Ibid. It also must lead to the conclusion that this is not a case “where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963). Pre-emption, then, if it is to exist at all in this case, must exist because the operation of the state Act inexorably conflicts with the purposes underlying the Federal Act. The Court relies on the fact that one of the purposes of the FPLA is to “facilitate value comparisons” among consumers, 15 U. S. C. § 1451 . But merely identifying a purpose is not enough; it must also be shown that the state law inevitably frustrates that purpose. As we but recently noted:

“We must also be careful to distinguish those situations in which the concurrent exercise of a power by the Federal Government and the States or by the States alone may possibly lead to conflicts and those situations where conflicts will necessarily arise. 'It is not . . . a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of [state] sovereignty.’ The Federalist No. 32, p. 243 (B. Wright ed. 1961).” Goldstein v. California, 412 U. S. 546, 554-555 (1973) (emphasis in original).

*546 Under the proper test, it is only

“[i]f the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power.” Savage v. Jones, 225 U. S. 501, 533 (1912).

The Court's reliance on supposition and inference fails in two respects to demonstrate that respondents have carried their burden of demonstrating pre-emption. First, on the Court’s own premises, there should be no finding of pre-emption. We are told, ante, at 526, that the relevant inquiry is “the relationship between state and federal laws as they are interpreted and applied, not merely as they are written,” while we are further told, ante, at 539, that there is, in fact, no “federal interest in preventing packages from being overfilled,” since the Federal Government is not “concerned with overweighting in the administration of its weights and measures laws . . . .” Under these premises, it is hard to accept the Court’s conclusion that, because of the federal purpose to facilitate consumer value comparisons, 2 the state law is pre-empted because some packages might contain more than the minimum weight stated and more than another company’s similarly marked package. For, we have been told that, should a manufacturer deliberately overpack, for whatever reason, 3 there will be no federal action taken against him even though value comparisons might then “be misleading.” It is virtually impossible to say, as the Court does, that “neither the State nor the Federal Government is concerned with over *547 weighting,” ante, at 542 n. 41, and yet conclude that state-induced overweighting conflicts with a “value comparison” purpose, while, presumably, other overweighting does not. In viewing such a purpose to be sufficient to require pre-emption while the very purpose is ignored in practice by the administering federal agency reverses the normal presumption against finding pre-emption. The reasoning process which leads the Court to conclude that there is no express pre-emption, ante, at 540, leads me to conclude that there is no implied pre-emption. 4

Second, and as troubling as the legal inconsistency, is the Court’s reliance on unproved factual speculation in demonstrating the purported irreconcilable undermining of the federal purpose by the state statutory scheme. The premises the opinion must rely on are many. It acknowledges that flour packed under different humidity conditions would nonetheless comply with the federal standard, even though, as a result, similarly marked packages might contain different quantities of flour “solids,” ante, at 542, and n. 39, but relies on the economics of the milling process to conclude that packers “will pack the same amount of [flour solids] into packages of any given size.” This may normally be true as an economic fact, but it is not supported by the record and as a Court we have no way of knowing it from other sources.

Similarly defective is the reasoning process by which the majority concludes that local millers could adjust their packaging practices to specific humidity conditions, while national millers could not, since the national millers “would not know the destination of [their] flour when it was packaged and would therefore have to assume that the flour would lose weight during distribution.” Ante, at 543. This assump *548 tion, too, is unsupported by the record. 5 We simply have no basis for concluding that national distributors do not know, or could not know through the exertion of some modicum of effort, where their flour will end up. The possibility that a packer might have to incur some extra expense in meeting both systems simply does not mean that the “purposes of the act cannot otherwise be accomplished,” Savage v. Jones, 225 U. S., at 533 , nor does it demonstrate that “the two acts cannot 'be reconciled . . . ,' ” Kelly v. Washington, 302 U. S., at 10 . 6

*549 The assumptions in the Court’s opinion not only are insufficient to compel a finding of implied pre-emption, they suggest an approach to the question of pre-emption wholly at odds with that enunciated in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963). There, this Court was concerned with differing federal and state maturity standards for avocados grown in Florida. This Court rejected a test which looked to the similarity of purposes, id., at 142 , and noted instead that a manufacturer could have complied with both statutes by modifying procedures somewhat, id., at 143 , which demonstrated that there was “no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards,” ibid. Nothing has been shown to demonstrate that this conclusion is not equally justified in the instant case.

The Court today demonstrates only that there could be— not that there must be—a conflict between state and federal laws. 7 Because reliance on this test to find pre-emption, absent an explicit pre-emptive clause, seriously misapprehends the carefully delimited nature of the doctrine of pre-emption, Goldstein v. California, 412 U. S., at 554 , I dissent from the holding that § 12211 and Art. 5 are pre-empted with respect to General Mills’ flour.

There is no contention that the subject of the regulation is in its “nature national, or admit[ting] only of one uniform system . . . .” Cooley v. Board of Wardens, 12 How. 299, 319 (1852). On the contrary, “the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern.” Florida Avocado Growers v. Paul, 373 U. S. 132, 144 (1963).

This purpose is not the only purpose underlying the Federal Act. Title 15 U. S. C. § 1451 also announces the congressional policy of labeling packages so as to “enable consumers to obtain accurate information as to the quantity of the contents . . . .”

Including, one would have supposed, state compulsion.

The majority nowhere explains why its conclusion, that the “state requirement is not inconsistent with federal law,” ante, at 540, does not reflect on the fact that the state statutory scheme does not inevitably conflict with the federal.

The Court’s reliance on the possible differential effect of California’s requirements on local and national millers is itself wholly speculative. To begin with, we do not know from the record that there are both “local” and “national” millers, however defined. Even if both exist, we simply do not know that local millers will ship flour only to areas with comparable humidity levels. Any miller might experience a variety of humidity conditions by shipping to two different areas, despite the fact that his operation may be considered local in that the two areas are relatively contiguous. Even in the same town, stores that are air-conditioned may have significantly different humidity conditions than exist elsewhere in the town. In such situations, the local millers would have to adjust their packing process to account for this differential, either by packing different quantities into different packages, and then tracing their distribution, or by overpacking all packages sufficiently to ensure that any possible humidity conditions could be met. The same would appear to be true for national millers. We simply, then, do not know that local millers and national millers would not be similarly affected. The Court’s assertions to the contrary are nothing but speculations.

For all that appears, packers could easily adjust their processes so as to insure compliance with the purposes of both Acts. Even if such adjustment should entail a minor economic inconvenience, it has nowhere been demonstrated that the imposition of a moderate economic burden conflicts with the purpose of the federal statutory scheme. California, in the exercise of its police powers, may be deemed to have believed that the benefits of its enactment outweigh these costs. Unless it can be shown that additional cost itself conflicts with a clear congressional purpose, the presumption is that our federal system of government tolerates such costs. And if added costs will vitiate the conflict, I do not see how it can be said that the statutory schemes necessarily conflict rather than *549 just “may possibly” conflict. Goldstein v. California, 412 U. S. 546, 554 (1973).

On its face, there is nothing inexorable about a conflict between a statute which, in effect, imposes a minimum weight requirement, and one whose purpose is to “enable consumers to obtain accurate information as to the quantity of the contents and [to] facilitate value comparisons.” 15 U. S. C. § 1451 .