# Petition — Wallace v. Rath Packing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2175%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 954 ## Text _—Supreme Court of the United’ States” October | No. oo lg in 2 L.. T. WALLACE as Director State of California and bool and Agriculture of the Director of the County of Loos Arun I , and Measures, Department of Petitioners, THE RATE PACKING COMPANY, © corporation, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit VELL YOUNGER Attorney General of California, CARL, BORONKAY, Assistant Attorney General, HERSCHEL! ALLAN J GOODMAN, Deputy Attorneys General, 3580 Wilshire Boulevard Los Angeles, Cali (213) 620-3864, Counsel for Petitioner I JOHN LARSON, County Counsel, Los Angeles County California, ARNOLD Ko GRAHAM, Deputy County Counsel 648 Hall of Los Angeles, Calif (213) 974-1868, Counsel for Peutioner M. HL. Becker \dministration, Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622 SUBJECT INDEX Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ............ EST TA PI AS APE AR LoL ge EE 2 Questions Presented ...........ccccceccceseseseecscsceseseeeeeeseees Constitutional and Statutory Provisions Involved .... Statement Pursuant to Rule 33(2)(b) .......0.0.0... I a creerecscteineniniaieimmsonnden Reasons for Granting the Writ ...................cccccccee 1. The Decision of the Court of Appeals De- prives California of Its Sovereign Authority to Protect the Health and Welfare of Its Citizens, Conflicts With the Principles Enun- ciated in Prior Decisions of This Court, and Is Contrary to Principles Affirmed by the Second Circuit in General Mills, Inc. v. STAN ar A SE A. The Decision Below Deprives California of Its Sovereign Police Power .............. B. The Court Below Erred in Finding (1) an Intent by Congress to Preempt State Standards and (2) That Cali- fornia Had Exceeded the Scope of Its “Concurrent Jurisdiction” to Enforce the Wholesome Meat Act .................... C. The Decision Below Is Contrary to Principles Affirmed by the Second Circuit in General Mills, Inc. v. Furness ii, Page D. The Decision Below Will Have a Deci- sive, Adverse Impact Upon Consumers and Competitors and Upon Federal- NET DETTE catesitislerdiniinsidininandiiabsimonsiee 2. In Reversing the Trial Court's Finding That 9 C.F.R. Section 317.2(h)(2) Was Void for. Vagueness, the Court of Appeals Has so Far Departed From the Usual Course of Judicial Proceedings as to Call for an Exer- cise of This Court's Power of Supervision ofl lf 3. The Holding of the Courts Below That There Is Feaeral Jurisdiction Raises Signifi- cant and Recurring Problems Concerning the Jurisdiction of Federal Courts and Is in Conflict With Prior Rulings of This Court 4. In Affirming the Trial Court’s Issuance of an Injunction in the Face of Substantial Evidence of Rath’s Unclean Hands, the Court Beiow Has Sanctioned a Departure From the Accepted Course of Judicial Proceedings and Disregard for Prior De- cisions of This Court, as to Call for an Ex- ercise of This Court’s Power of Supervision 15 16 20 INDEX TO APPENDICES Page "Appendix A. Opinion of the United States Court . of Appeals for the Ninth Circuit ............ App. p. 1 Appendix B. Constitutional and Statutory Pro- visions Involved .............. iandinteneumannentamanaianintets 59 Appendix C. Relevant Portions of the Record SEED . Waesnsicctieetbidiadetnctitbaisipiiaitvedinntstadintatnimenitain 74 Testimony of V. L. Hutchings, U.S.D.A. Re- gional Compliance Officer (Reporter's Tran- ME a ee 74 Testimony of Norman L. Mettert, Los Angeles County Department of Weights and Meas- ures (Reporter's Transcript, pp. 335-339) .... 88 Testimony of Chester A. Jaensen, Rath Packing Company (Reporter's Transcript, pp. 122- efi 2A Oe RE Sb 92 Appendix D. Title 4 California Administrative Code, Ch. 8, Subch. 2, Art. 5, §2930 et seq. ...... 97 iv. TABLE OF AUTHORITIES CITED Cases Page Armour v. Ball (6th Cir. 1972) 468 F. 2d 76, cert. 2 a) & seine eee 10, 13 Chandler v. O'Bryan, 445 F. 2d 1045 (10th Cir. FOGED. . .cciciwcintivenincstnitatnaataniine wantin ilaeieatiaiiabt 21 Flood v. Kuhn, 407 U.S. 253 (1972) ......--cccceeeeseees 19 Florida Lime and Avocado Growers v. Paul, 373 tS) 7 | ee 9, 10 General Mills, Inc., et al. v. Furness, 398 Fed. Supp. 151 (S.D. N.Y. 1974), affd. 508 F. 2d 536 ...... eT ae a a 4, 14, 15 Hicks v. Miranda, 423 U.S. 332 (1975) ...... 23, 24 Hines v. Davidowitz, 312 U.S. 52 (1941) ........... il Missouri-Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556 | aE 20, 21 Patapsco Guano Co. v. North Carolina, 171 U.S. SEG CAGE GD ccteeveesungsiviwietinadienae 9, 10 Perez v. Campbell, 402 U.S. 637 (1970) ............ 11 Precision Instrument Mfg. Co. v. Automotive Main- tenance Mach. Co., 324 U.S. 806 (1945) ........ 24 Public Service Commission v. Wycoff, 344 U.S. 237 { eee we 20, 21, 22, 23 Public Utilities Commission of California v. United Sresen, SSS UT SOG CIGD cccccseccssccecnsscccetnses 23 Red Lion Broadcasting Co. v. F.T.C., 395 U.S. 367 Co ee ~essstedsitceaminalandidiinaaaa 19 Samuels v. Mackell, 401 U.S. 66 (1970) .......... 24 Savage v. Jones, 225 U.S. 501 (1911) ...00.. 16 Skelly Oil Co. v. Phillips Co., 339 U.S. 667 (1950) Page United States v. Shreveport Grain & E Co., 287 U.S. EE 19 Younger v. Harris, 401 U.S. 37 (1970) ....23, 24 Rules Rules of the Supreme Court of the United States, ES 5 Statutes California Administrative Code, Title 4, Art. 5, EEE 5, 6, 10, 12 California Administrative Code, Title 4, Ch. 8, i ee 1 i, 2D... ....ssssssssssssscsoves 4, 8 California Business and Professions Code, Sec. EE SE 4, 5, 8, 10, 12 California Business and Professions Code, Sec. i. csesmenvennnonee 6 California Civil Code, Sec. 3369 ....000000000ccc.. 6 Code of Federal Regulations, Title 9, Sec. 317.2 SSE 4, 8, 11, 12, 16 Fair Packaging and Labeling Act, 80 Stat. 1296, 15 EE 14 Food, Drug and Cosmetic Act, 52 Stat. 1040, 21 EE EET 14 31 Statutes at Large, p. 1449, 15 U.S.C. §272(d) United States Code, Title 21, Sec. 601(n)(5) ..11, 16 United States Code, Title 21, Sec. 602 ......000....... 11 United States Code, Title 21, Sec. 607(b) vi. United States Code, Title 21, Sec United States Code, Title 28, Sec. United States Code, Title 28, Sec. vs ¢ ) eee 3 United States Code, Title 28, Sec. a 5 United States Code, Title 28, Sec Sec United States Code, Title 28, 2. pease 5 Wholesome Meat Act, 81 Stat. 584, 21 U.S.C. DFU scbdeinnsintiincanntiiiaieiae ee ere | 4, 5 IN THE ~ Supreme Court of the United States October Term, 1975 i a L. T. WALLACE as Directér of Food and Agriculture.of the State of California and M. H. BECKER as Director of the County of Los Angeles, California, Department of Weights and Measures, Petitioners, vs. THE RATH PACKING COMPANY, a corporation, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Petitioners L. T. Wallace as Director of Food and Agriculture of the State of California,’ and M. H. Becker as Director of the County of Los Angeles, California, Department of Weights and Measures, pray that a writ of certiorari issue to review the opinion and judgment of the United States Court of Appeals for the Ninth Circuit entered in this proceeding on October 29, 1975. The States, organizations, and law enforcement of- ficers listed in footnote 2 have authorized petitioners 1Dr. Wallace was appointed to succeed C. B. Christensen as Director during the pendency of this matter in the Court of Appeals. _ to advise the Court that they support the grantin of certiorari.’ \ 2The following jurisdictions and organizations support the granting of certiorari in this case. States: Bruce E. Babbitt, Attorney General of Arizona; Carl R. oe, Atto General of Connecticut; the State of John Farias, Jr., as Chairman of the Board of Agriculture, George Mattimoe, Deputy Director; the State of Department of Justice, William J. Guste, Jr a fag? the Commonwealth of rancis X. otti, Attorney General; Robert Woodahl, Attorney General of Montana; Pau! L. Douglas, ttorney General of Nebraska; Robert List, Attorney General of Nevada; Louis J. Lefkowitz, Attorney General of New York; the State of Oregon; the Commonwealth of P. Department of Agriculture, Raymond J. Kerstettler, Secretary; William J. Janklow, Attorney General of Dakota; Washington State ment of Agricul Slade Gordon, Attorney General. ¥ oY Associated Dairymen; Associated Milk Producers, Inc.; Cali- fornia Cattlemen’s Association; California Citizen Action Group; California Farm Bureau Federation; Consolidated Milk Producers for San Francisco; Consolidated Milk Pro- ducers of Tulare County; Consumers Cooperative of Berke- ley, Inc.; Federated Dairymen; Mid-America Dairymen, Inc.; League of California Milk Producers; Milk Producers Coun- cil; National Association of Retail Grocers of the U.S. Inc.; National Consumers Congress; Producers’ Market Milk Association; Scale Manufacturers Association, Inc.; Western Dairymen’s Association. Other California Law Enforcement Officers: D. Lowell Jensen, District Attorney, Alameda County; Thomas L. Kelly, District Attorney, Alpine County; Gu E. Reynolds, District Attorney, Amador County; Kenneth H. Leach, District Attorney, Butte County; Joseph W. Kiley, District Attorney, Calaveras County; Robert W. Weir, District Attorney, Del Norte; Terrence M. Finney, District Attorney, El Dorado County; Noble Sprunger, County Counsel, El Dorado County; William A. Smith, District _Attorney, Fresno County; L. H. Gibbons, District Attorney, Inyo County; Ralph B. Jordan, County Counsel, Kern County; Albert M. Leddy, District Attorney, Kern County; Harold L. Abbott, District Attorney, Lassen County; John K. Van de Kamp, District Attorney, Los Angeles County; Bruce Bales, District Attorney, Marin County; Douglas J. Maloney, County Counsel, Marin County; Duncan M. =— oe Opinion Below The opinion of the Court of Appeals, not. yet reported, "appears at Appendix A, infra, pp. 1-47. The opinion of the District Court for the Central District of Cali- fornia is reported at 357 Fed. Supp. 529, and appears at Appendix A, infra, pp. 47-58. Jurisdiction The judgment of the Court of Appeals for .he Ninth Circuit was entered on October 29, 1975. See Appendix A, infra, p. 1. This petition for a writ of certiorari was filed within 90 days of that date. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. section 1254(1). James, District Attorney, Mendocino County; Russell M. Koch, County Counsel, Merced County; John P. Baker, District Attorney, Modoc County; James D. Boitano, District Attorney, Napa County; Ronald L. MacMiller, District Attorney, Nevada County; Cecil Hicks, District Attorney, Orange County; Gerald E. Flanagan, District Attorney, Plumas County; Byron C. Morton, District Attorney, River- side County; John M. Price, District Attorney, Sacramento County; Edwin L. Miller, Jr., District Attorney, San Diego County; Joseph Freitas, District Attorney, City and County of San Francisco; Joseph H. Baker, Dis- trict Attorney, San Joaquin County; Robert N. Tait, District Attorney, San Luis Obispo County; Keith C. Sorensen, District Attorney, San Mateo County; James M. Cramer, District Attorney, San Bernardino County; Stanley M. Roden, District Attorney, Santa Barbara County; Louis P. Bergna, District Attorney, Santa Clara County; Christopher C. Cottle, District Attorney, Santa Cruz County; Shasta County, Robert A. Rehberg, County Counsel; Robert W. Baker, District Attorney, Shasta County; Gene L. Tun- ney, District Attorney, Sonoma County; Donald N. Stahl, District Attorney, Stanislaus County; Edward F. Buckner, County Counsel, Sutter County; H. Ted Hansen, District Attorney, Sutter County; Henry J. Goff, Jr., District Attor- ney, Tehama County; Calvin E. Baldwin, County Counsel, Tulare County; J. W. Powell, District Attorney, Tulare County; a Dietrich Jr., County Counsel, Tuolumne County; C. Stanley Trom, District Attorney, Ventura Coun- ty; Bartley C. Williams, District Attorney, Yuba County. —_ vn Questions Presented 1. Whether the Court of Appeals erred in holding that California may rot exercise its police power to assure the California public and competitors that pack- aged meat products bear accurate statements of weight, which holding is contrary to principles affirmed by the Second Circuit in General Mills, Inc. v. Furness, 508 F. 2d 836 (i975). 2. Whether the Court of Appeals erred in reversing the District Court’s determination that a United States Department of Agriculture regulation wh.ch purports, without specifying any limits, to permit “reasonable variations” from label statements of weight on packaged meat products was void for vagueness. 3. Whether the Court of Appeals erred in holding that the District Court had jurisdiction to review Rath’s defenses to prior-filed state court actions after the District Court had remanded the state court actions. 4. Whether the Court of Appeals erred in affirming issuance of an injunction requested by respondent when there was substantial evidence of Rath’s violations of law and unclean hands. Constitutional and Statutory Provisions Involved The case involves Article VI, clause 2 of, and Amend- ment X to, the United States Constitution; the Whole- some Meat Act, 81 Stat. 584 et seg., 21 U.S.C. section 601 et seq.; 9 Code of Federal Regulations section 317.2(h)(2); and California Business and Pro- fessions Code section 12211; California Stats. 1963, ch. 353; which are reprinted in pertinent part in Appen- dix B, infra, pp. 59-69, and Title 4, Calif. Admin. Code, ch. 8, subch. 2, Art. 5, section 2930 et seqg., which is set out as Appendix D, infra, pp. 97-113. —5— Statement Pursuant to Rule 33(2) (b) Since this proceeding draws into question the constitu- ‘tionality of the Act of March 4, 1907, as amended 81 Stat. 584, 2i U.S.C. sections 601 ef seqg., an Act of Congress affecting the public interest, and neither the United States nor any agency, officer or employee thereof is a party, it is noted that 28 U.S.C. section 2403 may be applicable. | No court of the United States as defined by 28 U.S.C. section 451 has, pursuant to 28 U.S.C. section 2403, certified to the Attorney General the fact that the constitutionality of such Act of Congress has been drawn in question. Statement of the Case In the trial court respondent claimed that jurisdiction was conferred by 28 U.S.C. section 1331(a)~as it alleged that a case or controversy arising under the laws of the United States involving niore than $10,000 was presented. For reasons set out infra, petitioners contest the assumption of jurisdiction by the trial court. To assure California consumers, wholesalers and re- tailers that the packages they purchase contain the quantity stated on the label, and to protect markets for producers, petitioners and their predecessors, Cali- fornia weights and measures officials, have, pursuant to state law (Cal. Bus. & Prof. Code § 12211 and 4 Cal. Admin. Code § 2930 et seq. (Article 5)) and for more than 15 years, inspected products of all manufacturers and packers, applying the same ac- curate-weight-on-the-average standard regardless of the origin of the commodity inspected. In the course of enforcing these truth-in-packaging laws during the period April 1971 through March 1972, petitioner Becker inspected lots of bacon pack- aged by respondent The Rath Packing Company (Rath) when offered for retail sale. These packages carry a representation by Rath of the weight of the contents (e.g., Net Weight 16 oz. (1 Ib.)). After determining that lots of Rath bacon bore false statements of weight, petitioner Becker ordered them off sale.’ More than 100 lots of Rath bacon were ordered off sale. Con- ferences were had with Rath representatives at which they were advised that Rath must deliver to the pur- chasers the net weight represented on the package. As a result of Rath’s failure to meet this standard, on February 17, 1972, the Riverside County, California, District Attorney filed a civil action against Rath in Riverside County Superior Court, for violation of Cali- fornia false advertising and unfair competition statutes. On March 1, 1972, the Los Angeles County, California, District Attorney filed a similar action in Los Angeles County Superior Court.‘ Rath removed each of these cases to United States District Court and filed answers and counter-claims in that court. ‘Both the District Court and the Court of Appeals acknowl- edged the statistical validity of the California testing procedure (Article 5), Appendix A, infra, at 8 and 52. Utilizing Article 5 there is but one chance in one thousand that the determination that a lot is short weight is not correct. ‘The texts of the statutes upon which these complaints are based (Cal. Bus. & Prof. Code § 17500 and Cal. Civ. Code § 3369) are set out in Appendix B, infra, pp. 69-71. = = Each California Superior Court action alleged that statements of weight placed by Rath upon its packaged ‘bacon were untrue as in fact packages were short weight when inspected at the retail level. In its answers filed in the removal proceedings, Rath asserted as a defense to the California Superior Court actions, federal preemption. By counterclaim, Rath sought dec- laratory and injunctive relief alleging preemption of California’s weights and measures laws by the federal Wholesome Meat Act. On March 20, 1972, the District Court entered orders remanding each action to its original California court, finding at least with respect to the Riverside action that there was no diversity of citizenship and “(n]o substantial federal question is presented on the face of the pleadings.” Meanwhile, on March 17, 1972, Rath filed the action in the District Court which petitioners now seek to have this court review. In each new District Court action, Rath complained for declaratory and injunctive relief based upon allega- tions that certain state statutes were preempted by the Wholesome Meat Act. Rath’s District Court com- plaints raised identical issues to those set out in its answers and counterclaim filed upon removal of the state court actions and to those made in its answers and cross-complaints in the state court complaints. The state statutes which Rath challenged by its action in District Court are the very ones under which the Los Angeles and Riverside County District Attorneys had brought suit against Rath. On November 27, 1972, the District Court denied Christensen and Becker’s motion to dismiss the action below for want of jurisdiction. Petitioners then sought review of this decision in the Ninth Circuit. The Court of Appeals declined to disturb the District Court’s assumption of jurisdiction. On April 3, 1973, the trial court entered its Memo- randum Opinion and Order (Appendix A, infra, pp. 48-57). That decision held, in part, that California Busi- ness and Professions Code section 12211 and Title 4, California Administrative Code, chapter 8, subdivi- sion 2, Article 5, are preempted by federal law, and enjoined their enforcement. The District Court also held that 9 C.F.R. section 317.2(h)(2) was void for vagueness. The Court of Appeals affirmed the preemption hold- ing and reinstated the federal regulation. ~~ = REASONS FOR GRANTING THE WRIT 1. The Decision of the Court of Appeals Deprives California of Its Sovereign Authority to Protect the Health and Welfare of Its Citizens, Conflicts With the Principles Enunciated in Prior Decisions of This Court, and Is Contrary to Principles Af- firmed by the Second Circuit in General Mills, Inc, v. Furness A. The Decision Below Deprives California of Its Sovereign Police Power As this court said almost 80 years ago: “Where the subject is of wide importance to the community, the consequences of fraudulent practices generally injurious, and the suppression of such frauds matter of public concern, it is within the protective power of the State to intervene. Laws providing for the inspection and grading of flour, the inspection and regulation of weights and measures, the weighing of coal on public scales, and the like, are all competent exercises of that power. . . .” Patapsco Guano Co, v. North Carolina, 171 U.S. 345, 358 (1897). And as more recently stated in Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 144 (1962): “(T]he supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern. . . . [T]he States have always possessed a legitimate interest in the protection of . . . [their] people against fraud and deception in the sale of food products at retail markets within their borders.” In the face of this Court’s repeated affirmation of the right of the States to assure their citizens antifiees of truth and wholesomeness in the marketplace, the Court below held that California laws, designed to prevent fraud in the marketplace by requiring that label weight statements be accurate when the product is purchased (Cal. Bus. & Prof. Code § 12211 and Article 5), offend Article VI, section 2, the supremacy clause, of our federal Constitution when viewed against 21 U.S.C. section 678. See Armour v. Ball (6th Cir. 1972) 468 F. 2d 76; cert. den. 411 U.S. 981. However, no article or clause of our federal Consti- tution relinquishes the police power of the States. And the Tenth Amendment specifically reserves to the States all powers not delegated to the United States by the Constitution, nor prohibited by it to the States. Thus, in order for the Court below to conclude that California laws were preempted by section 678 of the Wholesome Meat Act, it must necessarily have concluded that the States had, by Constitution, yielded the necessary authority to the federal government. Yet, nowhere in ovr Constitution is this power expressly or impliedly relinquished, and in light of Patapsco Guano, supra, and Florida Lime and Avocado Growers, supra, petitioners urge that this Court has specifically affirmed the police power of the States in this field and that the Court below erred. B. The Court Below Erred in Finding (1) an Intent by Con- gress to Preempt State Standards and (2) That California Had Exceeded the Scope of Its “Concurrent Jurisdiction” to Enforce the Wholesome Meat Act Assuming, arguendo, that Congress may restrict the authority of the states in this field, petitioners contend the circuit court erred in holding that the California standard of true weight on the average at retail is - preempted by the federal standard. Deciding whether a state statute is in conflict with a federal statute and invalid under the Supremacy Clause is a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question of whether they are in conflict. Perez v. Campbell, 402 U.S. 637, 644 (1970). Preemption is found only where there is a direct and positive conflict between the state and federal objectives—where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines vy. Davidowitz, 312 U.S. 52, 67 (1941); Perez v. Campbell, supra, at 651-52. The purpose of the Wholesome Meat Act is to protect consumers and competitors from misbranded and adulterated meat products. (21 U.S.C. § 602.) Under this Act a packaged meat product is misbranded unless it bears “an accurate statement of the quantity of contents . . . Provided, That . . . reasonable variations may be permitted . . . by regulations pre- scribed by the Secretary [of Agriculture].” (21 U.S.C. § 601(n)(5).) Pursuant to this authority the Secretary has adopted 9 C.F.R. 317.2(h)(2).° R. 317.2(h)(2) provides: bh ayhinn ny « is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Varia- tions from stated quantity of contents shall not be unrea- sonably large.” aniiftius California Business and Professions Code section 1221 1," which the lower federal courts held to be preempted by the Wholesome Meat Act, requires that each “sealer” (weights and measures official) weigh packages “in order to determine whether [they] contain the quantity or amount represented . . .” and permits the Director of Food and Agriculture to adopt regu- lations for the accomplishment of this objective provided that the average weight or measure of the packages . . . in a lot . . . sampled shall not be less . . . than the net weight or measure stated upon the package. . . .” The Director adopted such a uniform testing procedure (4 Cal. Admin. Code § 2930 et seq.) which both the District and Circuit Courts recognized to be statisti- cally valid (Appendix A, infra, at p. 8 and p. 52), but criticized for not recognizing only the causes of variations described in 9 C.F.R. 317.2(h)(2). Petitioners contend that the court below erred in its determination of the existence of a conflict between state and federal laws and in its assessment of the extent of that conflict. First, the purpose and effect of the invalidated California law are to require and enforce true weight on-the-average at retail. This stand- ard is fully in accord with the intent of the Wholesome Meat Act. (As the courts below acknowledged Article 5, the California testing procedure, is a statistically sound means of determining the true weight of any lot of product. ) Second, use of the true-weight-on-the-average stand- ard and of numerical limits on the reasonableness of variations are specifically authorized by the Secretary *The full text of this statute i i " infra, pp. 68-69. ute is set out in Appendix B, ee ete - — of Commerce, National Bureau of Standards (United States Department of Commerce, National Bureau of - Standards, Checking Prepackaged Commodities, 1959). Third, federal agencies have adopted the accuracy- on-the-average interpretation used by California but re- jected by the court below. The United States Department of Agriculture and Environmental Protection Adminis- tration each has interpreted statutes which require that label statements of weight be accurate, but which allow adoption of regulations which permit reasonable variations to require accurate weight on the average. (Appendix B, infra, at pp. 71-73.) Thus the court below erred (1) in finding the weight standard enforced in California to be in conflict with that established by the Wholesome Meat Act, and (2) in concluding that California’s laws are preempted." Even assuming, arguendo, that there is a conflict between state and federal standards, there are no facts justifying the conclusion that the state system stands in opposition to the federal—a necessary precondition to a finding of preemption. Not only is there no direct and positive conflict between the objectives of the state and federal laws, but it is only through enforcement of the state laws that the purposes of the federal law is being carried out. V. L. Hutchings, officer in charge of the USDA Western Region Compli- ance Staff, testified at trial that (1) he has seven TArmour v. Ball, supra, is ee as there the ingredient standard sought to be imposed by Michigan was, arguendo, materially different from the standard promulgated by the Secre- tary of Agriculture. By contrast, in the instant case the Cali- fornia standard is in accord with principles established by the National Rureau of Standards and similar to the former USDA (now EPA) regulation which was adopted pursuant to a statute which imposes a standard identical to that in issue. onlin compliance officers for the 12 western states (including Alaska and Hawaii), (2) these officers do not them- selves have the training or equipment to make the necessary retail level inspections, and (3) USDA must therefore rely upon States and state procedures to determine whether product is short weight. And while there is not one reported case of USDA enforcement of truth of packaging standards under the Wholesome Meat Act, in 1975 alone Los Angeles County brought 363 court cases. It should be clear from this evidence that it is only by means of the enforcement action of California weights and measures officials that the Federal statutory standard of true weight at retail is enforced. Cc, The Decision Below Is Contrary to Principles Affirmed by the Second Circuit in General Milis, Inc. v. Furness In General Mills, Inc., et al. v. Furness, 398 Fed. Supp. 151 (S.D. N.Y. 1974), affd. 508 F. 2d 536, the court rejected plaintiff’s contention of preemption of a New York City ordinance regulating the weight of prepackaged commodities which was found to be substantially more stringent than applicable federal standards (under the Food, Drug and Cusmetic Act 52 Stat. 1040, 21 U.S.C. § 301 et seg. and Fair Packag- ing and Labeling Act, 80 Stat. 1296, 15 U.S.C. 1451 et seq.) Taking particular note of the defendant’s interest in regulating weights and measures, the court affirmed the City of New York’s power to regulate in this field even though one consequence might be to require out of state packagers to alter their practices to conform to the local standards which are applied equally to all. x = Petitioners contend that the principle of General Mills v. Furness, reaffirming the power of state and - local agencies in non-discriminatory regulation of weights and measures, is applicable in the instant case and that the court below erred in voiding California’s non- discriminatory enforcement procedure. D. The Decision Below Will Have a Decisive, Adverse Impact Upon Consumers and Competitors and Upon Federal-State Relations The decision below voids state laws designed to (1) enable consumers to rely upon the truth of repre- sentations made to them in the marketplace, (2) assure that all competitors must meet the same, beneficial standards. To all the States the consequences of the ruling below are severe. If the ruling below is permitted to stand, the States will be unable to prevent the sale of foodstuffs which are falsely labeled or adulterated. The present state laws which require a uniform standard of accuracy are important to: (1) consumers who must rely on package labels showing net weight or net quantity in comparing values among competing products, (2) retailers who not only sell packaged goods in competition with other retailers, but who are also large purchasers of packaged products which they then repackage into smaller products, for example meat cuts and cheeses, (3) restaurant operators, schools and other institutions that buy large quantities of pack- aged foods, (4) federal agencies such as the Department of Defense and the Veteran’s Administration that buy large quantities of packaged foods, (5) packagers of food and other consumer products who are in competi- tion with domestic and foreign packagers, (6) farmers — who sell to packagers, since shortages in packages can mean less total product purchased, and (7) manu- facturers and servicers of packaging, weighing and measuring equipment since packagers who are permitted shoriages depending upon the type of equipment used are induced to use poor rather than modern, accurate equipment. Petitioners contend that no constitutional principle permits the result reached by the circuit court. As Justice Charles Evans Hughes said in Savage v. Jones, 225 U.S. 501, 528 (1911): “.. . the Constitution of the United States does not secure to anyone the privilege of defrauding the public.” The conflict of the ruling below with the sovereign authority of the States to prevent fraud in the market- place and with principles of prior decisions of this Court justify the granting of certiorari. 2. In Reversing the Trial Court’s Finding That 9 C.F.R. Section 317.2(h)(2) Was Void for Vague- ness, the Court of Appeals Has so Far Departed From the Usual Course of Judicial Proceedings as to Call for an Exercise of This Court’s Power of Supervision Over Federal Courts When read together with 9 C.F.R. section 317.2(h) (2), 21 U.S.C. section 601(n)(5) defines a packaged meat product to be misbranded if it is “unreasonably” short weight. While the Court of Appeals recognized the public importance of the question of the validity of 9 C.F.R. section 317.2(h)(2), Appendix A, infra, at p. 26, it —>) treated the matter summarily and overturned the trial court’s well reasoned conclusion that the regulation was void for vagueness. In so holding the Court of Appeal categorized the question as one of “facial” invalidity (Appendix A, infra, at p. 26), stated there was no evidence tending to show how much weight variation is considered rea- sonable by the trade, and concluded that Christensen and Becker had the burden of showing that the regula- tion is incapable on its face of setting a standard for its enforcement but had failed to meet that burden (Appendix A, infra, at p. 35). The court below also ignored the evidence introduced in the trial court and that court’s refusal to hear other evidence on these very issues. Assuming, arguendo, that the Court of Appeals is correct in its assertion that the issue is one of facial invalidity of the questioned regulation, the court below clearly erred in its holding that the regulation as it interprets it sets an ascertainable standard. The vagueness of the instant regulation as interpreted by the circuit court is manifest. As set forth supra, the court below interprets this regulation as permitting “reasonable variations.” Yet nowhere in the regulation is there definition of the phrases (1) “good distribution practices,” (2) “unavoidable deviations,” (3) “good manufacturing practices,” or (4) “reasonable varia- tions.” Moreover, as interpreted by the court below, the term “variations” suddenly takes on a different meaning—that of “shortages.” Rather than follow (1) the accuracy-on-the-average interpretation utilized by the National Bureau of Standards, the federal agency charged by law (See 31 Stat. 1449, 15 U.S.C. = §§ 272(d) and (5)) with supervising weights and meas- ures laws and enforcement, or (2) the same interpreta- tion uf an identical statutory standard by two federal agencies, or (3) the judgment of the trial judge who heard a USDA official describe how this regulation was being applied, the circuit court chose to ignore all constructions of the regulation which give an ascer- tainable standard and thus reverted to a non-standard. The regulation as construed by the court below provides no guidance in determining whether a weight shortage is “reasonable” or “unreasonable,” and is con- trary to USDA administrative interpretation and EPA regulation under an analogous statute. See supra, at pp. 12-13 and Appendix C, infra, at pp. 71-73. And USDA practice in the meat inspection field is wholly arbitrary, the decision to recommend removal from sale of short weight packages depending solely upon “a judgment call” on the part of the Regional Compliance Officer. Testimony on this point by the Officer in Charge, Western Region, USDA Compliance Staff (See Appendix C, infra, at pp. 74-88) had considerable im- pact upon the trial judge, who found the regulation at issue to be void for vagueness. And, when counsel for petitioner Becker attempted to introduce evidence of industry practice to show that other packers met the standard of regulation urged by petitioners—accurate weight on the average—the trial court refused to admit evidence on this point. (Appendix C, infra, at pp. 88-91.) ee ee — Thus, while holding that petitioners had the burden of showing the questioned regulation to be invalid, the Court of Appeals (1) ignored a construction of the regulation which would yield a useful standard, (2) ignored the trial judge’s judgment in favor of petitioners after he heard only the evidence on this point which petitioners were permitted to introduce, and (3) failed to remand with instructions to the trial court to permit petitioners to introduce other evidence on this point to sustain the burden*® which the circuit court finds that petitioners did not meet. The result is fundamentally unfair—a clear denial of due process of law—requiring review by this court. ‘In validating the regulation the court below relied in large part upon this court’s decison in United States v. Shreveport Grain & E Co., 287 U.S. 77 (1932). However, as the District Court points out, 357 Fed. Supp. at 534, Shreveport does not reach the question presented in the instant case: the redele- gation to each USDA compliance officer of deciding whether in “his judgment” a variation (caused by an unknown) is or is not “reasonable.” The court below also relie’ heavily upon validation by Congres- sional inaction: “Forty-two years of Congressional silence is strong evidence that Congress has acquiesced in the Secretary's [Agriculture] interpretation of the scope of his powers.” (Ap- pendix A First, the logic in this statement is questionable—even long- standing acquiescence in unconstitutional activity cannot correct constitutional infirmities. Second, Congressional inaction may, equally, stand for ap- proval of the States’ activity in this field. Third, the absence of Congressional action on any question is hardly evidence of more than the inherent complexity and slowness of the legislative process. As the Congress has never had the occasion to review by legislative change the Secretary of Agriculture’s enforcement of the Wholesome Meat Act, cita- tion by the court below of Red Lion Broadcasting Co. vy. F.T.C., 395 U.S. 367, 381 (1969) and Flood v. Kuhn, 407 U.S. 253, 283 (1972) is inapposite. Ss 3. The Holding of the Courts Below That There Is Federal Jurisdiction Raises Significant and Recur- ring Problems Concerning the Jurisdiction of Fed- eral Courts and Is in Conflict With Prior Rulings of This Court The complex procedural history of the action below and the two prior California Superior Court lawsuits is Outlined in the statement of the case, supra.° Petitioners contend that the court below grossly erred in holding that the facts of the instant case make inapposite application of the principle of this court's decision in Missouri-Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556 (1896) and Public Service Commission vy, W ycoff, 344 U.S. 237 (1952). The consequence of this error by the court below was to confirm the fragmenting and scattering of litiga- tion of the same questions among three courts, and to encourage future litigants who are sued by state law enforcement officers in state courts to bring “new” actions in federal court. The multiplicity of litigation and second class status for state courts which the °The crucial facts are these; On February 17 and March 1, 1972, respectively, the District Attorneys (the Court of Appeals mistakenly ascribes these lawsuits to the County Counsel of these counties, Appendix A, infra, at pp. 9 and 10) of River- side and Los Angeles Counties filed suit against Rath alleging vio- lations of state false advertising and unfair competition laws because, when offered for retail sale, the weight representations made on the packages offered were false. Rath removed both cases to District Court. Three days prior to entry of the remand orders, Rath filed the action from which this petition arises. That action contains allegations virtually identical to those made in Rath’s counter-claims filed during the removal proceedings and to those which Rath made in the state court actions, thus showing Rath’s attempt to litigate its defenses to the State Court actions in Federal Court. ==? | decision below encourages is in conflict with a proper relationship between state and federal courts. Just ‘ as a “new” action in federal court was brought in this case so could “new” actions be brought to halt all state enforcement activities. In response to petitioners’ contention that Rath’s District Court action was nothing more than an attempt to get collateral review of the remand orders—a ma- neuver which is specifically prohibited by 28 U.S.C. section 1447"°—the Court of Appeals reasoned that, notwithstanding the issuance of such an order by the District Court, Rath was entitled to a federal forum because the District Cdurt had not made any decision with respect to the propriety of a federal forum for Rath’s claims. Appendix A, infra. In so holding the court below departed from this court’s decision in Missouri Pacific Ry. Co., supra, that the policy of finality in remand orders is applicable in federal question as well as in diversity cases and that after remand federal question defenses must be litigated in the state court to which the action is returned. /d. at 583. Accord Chandler v. O'Bryan, 445 F. 2d 1045, 1057-58 (10th Cir. 1971). Further, the Ninth Circuit’s decision that the pro- cedural history of this litigation does not demonstrate Rath’s seizure of this litigation from state court is contrary to the principle enunciated by this court in Public Service Commission v. Wycoff, supra “Where the complaint in an action for declaratory judgment seeks in essence to assert a defense 28 U.S.C. section 1447 provides: “(d) An order remanding a case to the State court from which it is removed is not reviewable on appeal or otherwise. . . .” —_— = to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal question jurisdiction in the Dis- trict Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigation from state courts merely because one, normally a defendant, goes to federal court to begin his federal law defense before the state court begins the case under state law.” 344 U.S. at 248. (Emphasis added.) See also Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 672-74 (1950). Attempting to distinguish the instant case from Wy- coff the court below asserted that Wycoff applies only when the controversy is “merely threatened or impend- ing” (Appendix A, infra, at p. 17) and that the instant controversy was not created by the institu- tion of the state court actions against Rath, but arose independently thereof by virtue of the removal of short weight packages from sale prior to the commencement of the state court lawsuits. (Appendix A, infra, at p. 19.) The facts compel a contrary conclusion. Even though petitioner Becker met with Rath representatives and eufiien informed Rath that short weight packages would be removed from sale, which, according to the Court of ‘ Appeals, was sufficient basis for Rath to seek relief in a federal forum, Rath did nothing until the District Attorneys filed suit and even then Rath took no “inde- pendent” action until it realized that the state court actions would be remanded. Further, reliance of the court below upon this court’s decision in Public Utilities Commission of .California v. United States, 355 U.S. 534 (1958) is misplaced. That case does not stand for the principle that Wycoff is merely a statement that controversies which are not ripe are not justiciable. Rather, it stands for an entirely different proposition: when an administrative agency cannot provide the remedy sought, the aggrieved party may seek relief in an appropriate tribunal. By contrast, in the instant case, Rath’s federal claims would be properly presented and appropriately con- sidered in state courts. Rath was not without a state forum which would fairly consider its federal claims. And, in the manner in which those claims arose, Rath’s claims were by way of defense to a charge of violating state laws. Thus Wycoff commands that those claims be litigated in the state forum, and thus the court below should have dismissed Rath’s federal complaint for want of jurisdiction. In Hicks v. Miranda, 423 U.S. 332 (1975), this court confirmed that the rule of Younger v. Harris, 401 U.S. 37 (1970) is designed to “permit state courts to try state cases free from interference from federal courts [citation omitted] particularly where the party to the federal case may fully litigate his claim before _—s the state court.” 422 U.S. at 349. Accord Samuels v. Mackell, 401 U.S. 66 (1970). While the state court prosecutions in the instant case were for injunction and civil penalties and thus not criminal in nature, they were nevertheless actions to enforce state statutes brought by law enforcement officials. Petitioners submit that for reasons analogous to those underlying this court’s decision in Younger v. Harris the trial court below should not have under- taken to adjudicate this state court defendant’s defenses when there was no indication that they would not receive fair treatment in state court. Thus, the refusal of the court below to dismiss Rath’s complaint was an egregious error requiring inter- cession by this court. 4. In Affirming the Trial Court’s Issuance of an Injunction in the Face of Substantial Evidence of Rath’s Unclean Hands, the Court Below Has Sanctioned a Departure From the Accepted Course of Judicial Proceedings and Disregard for Prior Decisions of This Court, as to Call for an Exercise of This Court’s Power of Supervision In Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806 (1945), this court confirmed that a party with unclean hands may not invoke the equity jurisdiction of a court, and noted the added significance of the doctrine of unclean hands where the suit in equity concerns the public interest. /d. at 815. The instant case is one of public importance, as is demonstrated by the necessity for a weights and measures system upon which competitors and consumers ofitiin can both rely and by the impediments to commerce and to confidence in governmental agencies which result ‘from failure of these agencies to discharge their duty of assuring the truthfulness of product information which is disseminated. The public significance and wide- spread effect of the ultimate decision in this case was recognized by the Court of Appeals. (Appendix A, infra, at p. 26.) Although Rath knew its label statements of weight were false when its packaged bacon was sold to consum- ers, Rath fully intended and expected that consumers would believe those statements to be true. When con- fronted with this obvious duplicity Rath complained to the federal courts that the State of California would not permit Rath to continue this deceptive practice. In the face of the recognized public importance of this case and apparent disregard of the facts—which showed Rath to be knowingly in violation of the statute which it sought to invoke,’ thus clearly dem- onstrating Rath’s unclean hands—the District Court granted, and the Court of Appeals affirmed, equitable relief to Rath. Petitioners submit that this constituted a manifest abuse of discretion compelling review by this court. "Evidence introduced at trial showed that more than 45% of the packages of bacon which Rath produced were short weight at time of shipment from Rath’s plant—in violation of 21 U.S.C. §607(b). Further, one of the components of the aqueous curing solution which Rath uses to cure its bacon, tripolyphosphate, causes the product to retain moisture. An offer of proof by Christensen of Rath’s own records was made which revealed that during three weeks’ production there was produced 3,904, 3,300 and 12,898 more pounds of bacon than pounds of raw product used, a s violation of federal laws. (Appendix C, infra, at pp. 95-96.) —_— Conclusion For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Ninth Circuit. Respectfully submitted, EvVELLE J. YOUNGER, Attorney General of California, CARL BORONKAY, Assistant Attorney General, HERSCHEL T. ELKINS, ALLAN J, GOODMAN, Deputy Attorneys General, Counsel for Petitioner L. T. Wallace. JOHN LARSON, County Counsel, Los Angeles County, California, ARNOLD K. GRAHAM, Deputy County Counsel, Counsel for Petitioner M. H. Becker. ie APPENDIX A. Opinion of the United States Court of Appeals for the Ninth Circuit United States Court of Appeals, for the Ninth Circuit. The Rath Packing Company, a corporation, Plaintiff, Counter-Defendant and Appellant, vs. M. H. Becker as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-A ppellant. Nos. 73-2481, 73-2482, 73-3092. C. B. Christensen as Director of Agriculture of the State of California, /ntervenor, Appellee and Cross- Appellant. The Rath Packing Company, a corporation, Plaintiff and Appellant, vs. Joseph W. Jones as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant. Nos. 73-2496, 73-3180. [October 29, 1975] Appeal from the United States District Court for the Central District of California. Before: BROWNING and TRASK, Circuit Judges, AND RICH, Judge.* RICH, Judge: These suits were brought by Rath Packing Company (hereinafter “Rath”) to enjoin the enforcement of cer- tain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat *The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation. aniline. Act of 1967, 21 USC, §601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal. Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat- packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which “any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use as human food.” Becker and Jones are the Directors of the Depart- ments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California. Jurisdiction in the district court was based on 28 USC, §$1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented.’ We have jurisdiction of this appeal under 28 USC, §1291. The district court, in a memorandum and order reported at 357 F. Supp. 529 (C.D. Cal. 1973), granted in part the relief requested, and all parties appealed the determinations adverse to them. This case is a companion to General Mills, Inc., et al. v. Jones, Nos. 73-3583 and 74-1051, decided Jt is not disputed that the jurisdictional amount is present. =— concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well. Background This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief descrip- tion of the properties of bacon and how it is packed and weighed is necessary. The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in “drafts” of approximately one pound weight. An operator places each draft on an insert, or “tux”, board, which is a hardboard coated either with wax or with polyethylene.” The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. “The polyethylene-coated boards have absorbed 4/16 oz. less of bacon moisture and grease than the wax-coated board 4 days after pack. The saturation point of waxed board is reached 6 to 9 days after pack; about 5/16 oz. is absorbed. a Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USDA procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a “dry tare.”’ There is no evidence that Rath has violated federal weight standards in any way. The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of “misbranding” to the prior federal meat inspection laws. 21 USC §601(n) provides in relevant part: (n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances: * * * * (5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this subparagraph (5), reasonable variations may be permitted, and exemptions as to small packages may be estabished, by regulations prescribed by the Secretary [of Agriculture | ; * * * * Tare. * * * la: the weight of a container or vehicle that is deducted from the gross weight to obtain the net weight.” Webster's Third New International Dictionary 2341 (1971). — Ae OS i te —= = It is clear in the provisions for concurrent jurisdiction outside an inspected plant that such actions as are undertaken by states in the regulation of meat and meat food products must be consistent with the require- ments of the federal Wholesome Meat Act of 1967. That Act has spoken upon the subject of misbranding— and more particularly when misbranding is related to comparison of the label with contents as provided in 21 U.S.C. § 601(n)(5) in this language: “(n) The term ‘misbranded’ shall apply to any . .. Meat or meat food product... * * * (5) if in a package or other container it bears a label showing . . . (B) an accurate statement of quantity . . . in terms o¢ weight . . .: Pro vided, That under clause (B) of this subparagraph (5) reasonable variations may be permitted... by regulations prescribed by the Secretary.” To implement subsection (5), the United States Secretary of Agriculture published rules and regulations in Title 9, Code of Federal Regulations. In section 317.2(h)(2) the Secretary provides: “(2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.” California Article 5 just does not meet this federal standard. Nowhere in the measuring processes set forth ccniliiin therein in detail is any consideration given to the possible “loss . . . of moisture during the course of good distribution practice.” The measure of Article 5 is “absolute” as determined by accepted statistical methods and, as such, erroneously encroaches upon the standards provided by the federal Wholesome Meat Act of 1967. Defendants argue, however, that section 317.2(h) (2) is void for vagueness; that, therefore, we are left with the absolute standard, “an accurate statement of .. . weight”. Though valid, this argument does not end the inquiry in favor of state action. California Article 5-~though measuring the absolute provided in Califor- nia Business and Professions Code section 12211— applies a statistical “averaging” concept for the sealer to make the final determination of whether or not pack- ages in violation should be ordered “off-sale”. The fed- eral Wholesale Meat Act of 1967 does not give state legislatures or state officers—even in the grant of con- current enforcement jurisdiction—the right to sub- stitute their judgment of what variances, either plus or minus come within the absolute standard of “an accurate statement of . . . in terms of weight.” 21 U.S.C. § 601(n)(5)(B). Plaintiff argues the validity of 9 C.F.R. § 317.2(h)(2), citing the Supreme Court sanc- tion of a similar statute in United States v. Shreveport Grain & Elevator Company, 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932). But Shreveport, supra, does not reach the regulation under consideration here. In Shreveport, supra, the primary standard was given vitality because the “rules and regulations . . . deal with the entire subject in detail under the recital, ‘(i) the following tolerances a ee ee ee eee a eT eR ee ee ee —_ =~ = and variations’... .” (Emphasis added.) The Court then goes on to say at page 84, 53 S.Ct. at page 44: “ .. Then follows an enumeration of discrepan- cies due to errors in weighing which occur in packing conducted in compliance with good com- mercial practice; ... .” What Shreveport, supra, is telling us is that the statutory delegation is viable. It does not give viability to a redelegation that is subject to different enforcement re- sulting in varying degrees of reasonableness. The statute [21 U.S.C. § 601(n)(5)] gives the Secretary the power of definition of “reasonable variations”. The Secretary here has completely failed to accept the duty that can be expressed only in rules and regulations properly promulgated pursuant to federal law.’ Section 317.2(h) (2) is void for its inadequacy to set any recognizable standard upon which any individual may measure his conduct or his compliance with the law by which he must order his personal or business life.’ Conceding the invalidity of section 317.2(h)(2) to defendants, they now argue that the state is free to set its own standards of “reasonable variations” citing Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, rehearing denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082. The error of such dependence on Florida Lime, supra, is evidenced by the recognition by the Supreme 25 U.S.C. §§ 551-559. 8Under the regulation as it is written one meat inspector may conclude that x% loss of moisture can be expected. Given the same factual context, another meat inspector may come to the conclusion that y% loss of moisture is reasonable. Delegation of “administrator’s function” has never included giv- ing each enforcement officer the “keys to the jailhouse”. aniline Court, beginning at page 142, 83 S.Ct. 1210, that Congress had not foreclosed activity by the states where it can be reconciled with federal regulation. Here the defendants attempt to justify the California statutory scheme by a misunderstanding that labeling, qua label- ing, is what the federal Wholesome Meat Act of 1967 is all about and that California’s statute is aimed at misbranding. This conclusion is erroneous for two reasons: 1. Congress has defined “misbranding”. 2. “Misbranding” has no meaning except insofar as it describes a departure from the labeling de- scription of a commodity within a package.‘ The Court is aware of the admonition in Florida Lime, supra, in measuring preemption when the Su- preme Court says at page 142, 83 S.Ct. at page 1217: “The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regula- tory power in the absence of persuasive reasons— either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakenly so ordained.” The Congress here has left no doubt. It is the provisions of the federal Wholesome Meat Act of 1967 that are applicable to mislabeling or misbranding that must be applied. Neither state legislatures nor state officers can add or subtract from those definitions. If administrative definition of “reasonable variances” is desirable, it is the United States Secretary of Agricul- ‘Each of the twelve categories of misbranding described in 21 U.S.C. § 601(n) refers to, in some way, a label. Common sense tells us that mislabeling and misbranding are synonymous terms. —~ = ture who must speak. When he fails to speak or misspeaks his authority, the state cannot substitute its voice. Defendants here do not, in any sense of the word, pretend to be applying federal statutory standards. The enforcement of California Business and Professions section 12211 and its implementation in California Administrative Code Article 5 exceeds the concurrent enforcement rights of the state and its of- ficers. This conclusion should not in any way be taken to mean that state officers (sealers) cannot continue their stated mission to protect consumers of their respec- tive jurisdictions. They have available to them a federal statutory scheme which, when properly executed by state or federal officers, secures to the American home- maker the assurance that expected wholesomeness and value is received for each consumer dollar spent. That the evidence here shows the United States Department of Agriculture may have abdicated some of its protec- tive duty, does not justify the application of a different labeling requirement by the state of California and its officers. The claimed exemptions by Rath of its meat and meat food products do not—if beyond the preemp- tion standards recognized herein—need resolution to fully determine the controversy between the parties. In case No. 72-607-R judgment shall be entered for plaintiff. In case No. 72-608-R the motion for summary judgment of defendant is denied. The motion for sum- mary judgment of plaintiff is granted. Accordingly, It is ordered: —-™s= 1. That defendants and intervenor in case No. 72-607-R, and defendants in case No. 72-608-R, together with their respective deputies, inspectors, of- ficers, agents, servants, employees, attorneys and other persons in active concert or participation with them, and each of them, are restrained and enjoined perma- nently from applying the provisions of California Busi- ness and Professions Code section 12211 and/or the provisions of Title 4, California Administrative Code, Chapter 8, subchapter 2, Article 5, to articles prepared and marketed by plaintiff under United States Depart- ment of Agriculture’s inspection in accordance with the requirements of the federal Wholesome Meat Act of 1967 [21 U.S.C. § 601 et seq.]. 2. The Court reserves the continuing jurisdiction to make any modification to this injunction upon proper application by any party, as the ends of justice may require. Ce es —59— APPENDIX B. Constitutional and Statutory Provisions Involved Constitution of the United States, Article VI, clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . Shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Wholesome Meat Act, 81 Stat. 584, 21 United States Code § 601 et seq. § 601. Definitions. As used in this chapter, except as otherwise specified, the following terms shall have the mean- ings stated below: (a) The term “Secretary” means the Secretary of Agriculture of the United States or his delegate. *e# *& * (h) The term “commerce” means commerce between any State, any Territory, or the District of Columbia, and any place outside thereof; or within any Territory not organized with a legisla- tive body, or the District of Columbia. (n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances: —60— (1) if its labeling is false or misleading in any particular; s* * * (4) if its container is so made, formed, or filled as to be misleading; (5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distrib- utor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, ‘That under clause (B) of this subparagraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations pre- scribed by the Secretary; **# *& (o) The term “label” means a display of written, printed, or graphic matter upon the imme- diate container (not including package liners) of any article. (p) The term “labeling” means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article. § 602. Congressional statement of findings. Meat and neat food products are an important source of the Nation’s total supply of food. They are consumed throughout the Nation and the major portion thereof moves in interstate or foreign com- merce. It is essential in the public interest that the health and welfare of consumers be protected by assuring that meat and meat food products distributed to them are wholesome, not adulterated, i ee Ce ee oe eee a eniiiius and properly marked, labeled, and packaged. Un- wholesome, adulterated, or misbranded meat or meat food products impair the effective regulation of meat and meat food products in interstate or foreign commerce, are injurious to the public welfare, destroy markets for wholesome, noi adul- terated, and properly labeled and packaged meat and meat food products, and result in sundry losses to livestock producers and processors of meat and meat food products, as well as injury to consumers. The unwholesome, adulterated, mis- labeled, or deceptively packaged articles can be sold at lower prices and compete unfairly with the wholesome, not adulterated, and properly labeled and packaged articles, to the detriment of consumers and the public generally. It is hereby found that all articles and animals which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce, and that regulation by the Secretary and cooperation by the States and other juris- dictions as contemplated by this chapter are appro- priate to prevent and eliminate burdens upon such commerce, to effectively regulate such com- merce, and to protect the health and welfare of consumers. $607. Labeling, marking, and container require- ments. (a) Labeling receptacles or coverings of meat or meat food products inspected and passed; super- vision by inspectors. When any meat or meat food product prepared for commerce which has been inspected as herein- -_ = before provided and marked “Inspected and passed” shall be placed or packed in any can, pot, tin, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this subchapter is maintained, the person, firm, or corporation preparing said product shall cause a label to be attached to said can, pot, tin, canvas, or cther receptacle or covering, under the supervision of an inspector, which label shall state that the contents thereof have been “inspected and passed” under the provisions of this subchapter; and no inspection and examination of meat or meat food products deposited or in- closed in cans, tins, pots, canvas, or other recep- tacle or covering in any establishment where in- spection under the provisions of this subchapter is maintained shall be deemed to be complete until such meat or meat food products have been sealed or inclosed in said can, tin, pot,. canvas, or other receptacle or covering under the super- vision of an inspector. (b) Information on articles or containers; legible form. All carcasses, parts of carcasses, meat and meat food products inspected at any establishment under the authority of this subchapter and found to be not adulterated, shall at the time they leave the establishment bear, in distinctly legible form, directly thereon or on their containers, as the Secretary may require, the information required under paragraph (n) of section 601 of this title. (c) Labeling: type styles and sizes; definitions and standards of identity or composition; standards of fill of container; consistency of Federal and Federal-State standards. —_63—- The Secretary, whenever he determines such action is necessary for the protection of the public, may prescribe: (1) the styles and sizes of type to be used with respect to material required to be incorporated in labeling to avoid false or mis- leading labeling in marketing and labeling any articles or animals subject to this subchapter or subchapter II of this chapter; (2) ldefinitions and standards of identity or composition for articles subject to this subchapter and standards of fill of container for such articles not inconsistent with any such standards established under the Federal Food, Drug, and Cosmetic Act, and there shall be consultation between the Secretary and the Secretary of Health, Education, and Welfare prior to the issuance of such standards under either Act relating to articles subject to this chapter to avoid inconsistency in such standards and pos- sible impairment of the coordinated effective ad- ministration of these Acts. There shall also be consultation between the Secretary and an ap- propriate advisory committee provided for in sec- tion 661 of this title, prior to the issuance of such standards under this chapter, to avoid, insofar as feasible, inconsistency between Federal and State standards. (d) Sales under false or misleading name, other | marking or labeling or in containers of misleading form or size; trade names, and other marking, labeling, and containers approved by Secretary. No article subject to this subchapter shall be sold or offered for sale by any person, firm, or corporation, in commerce, under any name or other marking or labeling which is false or misleading, or in any container of a misleading a form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are ap- proved by the Secretary are permitted. (e) Use withholding directive respecting false or misleading marking, labeling, or container; modi- fication of false or misleading matter; hearing; withholding use pending proceedings; finality of Secretary's action: judicial review: application of section 194 of Title 7. If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any article subject to this subchapter is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading. If the person, firm, or corporation using or proposing to use the marking; labeling or container does not accept the determination of the Secretary, such person, firm, or corporation may request a hearing, but the use of the marking, labeling, or container shall, if the Secretary so directs, be withheld pending hearing and final determination by the Secretary. Any such determi- nation by the Secretary shall be conclusive unless, within thirty days after receipt of notice of such final determination, the person, firm, or corpora- tion adversely affected thereby appeals to the United States court of appeals for the circuit in which such person, firm, or corporation has its principal place of business or to the United States Court of Appeals for the District of Columbia Cir- 2 ene De — Ss cuit. The provisions of section 194 of Title 7 shall be applicable to appeals taken under this section. ' §624. Storage and handling regulations; violations; exemption of establishments subject to non-Fed- eral jurisdiction. The Secretary may by regulations prescribe con- ditions under which carcasses, parts of carcasses, meat, and meat food products of cattle, sheep, swine, goats, horses, mules, or other equines, capa- ble of use as human food, shall be stored or otherwise handled by any person, firm, or corpora- tion engaged in the business of buying, selling, freezing, storing, or transporting, in or for com- merce, or importing, such articles, whenever the Secretary deems such action necessary to assure that such articles will not be adulterated or mis- branded when delivered to the consumer. Viola- tion of any such regulation is prohibited. How- ever, such regulations shall not apply to the storage or handling of such articles at any retail store or other establishment in any State or organized Territory that would be subject to this section only because of purchases in commerce, if the storage and handling of such articles at such establishment is regulated under the laws of the State or Territory in which such establishment is located, in a manner which the Secretary, after consultation with the appropriate advisory com- mittee provided for in section 661 of this title, determines is adequate to effectuate the purposes of this section. § 678. Non-Federal jurisdiction of Federally reg- _ ulated matters; prohibition of additional or differ- ee a ee ent requirements for establishments with inspection services and as to marking, labeling, packaging, and ingredients; recordkeeping and related require- ments; concurrent jurisdiction over distribution for human food purposes of adulterated or misbranded and imported articles; other matters. Requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment at which inspection is pro- vided under subchapter I of this chapter, which are in addition to, or different than those made under this chapter may not be imposed by any State or Territory or the District of Columbia, except that any such jurisdiction may impose rec- ordkeeping and other requirements within the scope of section 642 of this title, if consistent therewith, with respect to any such establishment. Marking, labeling, packaging, or ingredient re- quirements in addition to, or different than, those made under this chapter may not be imposed by any State or Territory of the District of Colum- bia with respect to articles prepared at any estab- lishment under inspection in accordance with the requirements under subchapter I of this chapter, but any State or Territory or the District of Columbia may, consistent with the requirements under this chapter, exercise concurrent jurisdiction with the Secretary over articles required to be inspected under said subchapter I, for the purpose of preventing this distribution for human food pur- poses of any such articles which are adulterated or misbranded and are outside of such an establish- ment, or, in the case of imported articles which are not at such an establishment, after their entry — into the United States. This chapter shall not preclude any State or Territory or the District of Columbia from making requirement or taking other action, consistent with this chapter, with respect to any other matters regulated under this chapter. Code of Federal Regulations, Title 9, Section 317.2. (b) Any word, statement, or other information required by this part to appear on the label must be prominently placed thereon with such conspic- uousness (as compared with other words, state- ments, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use. In order to meet this requirement, such information must appear on the principal display panel except as otherwise permitted in this part. (c) Labels of all products shall show the fol- lowing information on the principal display panel (except as otherwise permitted in this part), in accordance with the requirements of this part or, if applicable, Part 319 of this subchapter: (4) An accurate statement of the net quantity of contents, as prescribed in paragraph (h) of this section: (h)(1) The statement of net quantity of con- tents shall appears on the principal display panel of all containers to be sold at retail intact, in conspicuous and easily legible boldface print or type in distinct contrast to other matter on the package and shall be declared in accordance with ontiiinn i the provisions of subparagraphs (2) through (10) of this paragraph. (2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good dis- tribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large. California Business and Professions Code § 12211. Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law. The director is hereby authorized and directed to adopt and promulgate necessary rules and regu- lations governing the procedures to be followed by sealers in connection with the weighing or measuring of amounts of commodities in individual packages or containers or lots of such packages or containers, including the procedures for sam- pling any such lot, and in determining whether any package or container or a lot of such packages or containers complies with the provisions of this section. Any such rule or regulation, or amendment thereof, shall be adopted and promulgated by the director in conformity with the provisions of Chap- ter 4.5 (commencing with Section 11371), of wollen Part 1 of Division 3 of Title 2 of the Govern- ment Code; provided, that the average weight or measure of the packages or containers in a lot of any such commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package, and provided further, that said rules or regulations applicable to food, as defined in Section 26450 of the Health and Safety Code, insofar as possible, shall not require higher stand- ards and shall not be more restrictive than regula- tions, if any, promulgated by the Department of Health, Education, and Welfare, Food and Drug Administration, under the provisions of the Federal Food, Drug and Cosmetic Act. Any lot or package of any such commodity which conforms to the provisions of this section shall be deemed to be in conformity with the provisions of this division relating to stated net weights or measures. Whenever a lot or package of any commodity is found to contain, through the procedures au- thorized herein, a less amount than that represent- ed, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or con- tainer before same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented. California Business and Professions Code § 17500 It is unlawful for any person, firm, corpora- tion or association, or any employee thereof with " aiien intent directly or indirectly to dispose of real or personal property or to perform services, pro- fessional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or dis- seminate or cause to be made or disseminated before the public in this State, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, any statement, concerning such real or personal property or serv- ices, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any such person, firm, or corporation to so make or disseminate or cause to be so made or dissemi- nated any such statement as part of a plan or scheme with the intent not to sell such personal property or services, professional or otherwise, so advertised at the price stated therein, or as so advertised. California Civil Code §3369. 1. Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, exci t in a case of nuisance or unfair competition. 2. Any person performing or proposing to perform an act of unfair competition within this State may be enjoined in any court of competent jurisdiction. oe _ Sue ~~ = 3. As used in this section, unfair competition shai! mean and include unlawful, unfair or fraudu- . lent business practice and unfair, untrue or mis- leading advertising and any act denounced by Business and Professions Code Sections 17500 to 17535, inclusive. 61 Stat. 166, 7 U.S.C. section 135(a) provides:' (a) It shall be unlawful for any person to distribute, sell, or offer for sale in any Territory or in the District of Columbia, or to ship or deliver for shipment from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, or to receive in any State, Terri- tory, or the District of Columbia from any other State, Territory or the District of Columbia, or foreign country, and having so received, deliver or offer to deliver in the original unbroken package to any Other person, any of the following: (2) Any economic poison unless it is in the registrant’s or the manufacturer’s unbroken imme- diate container, and there is affixed to such con- tainer, and to the outside container or wrapper of the retail package, if there be one through which the required information on the immediate container cannot be clearly read, a label bearing— 'This statute was amended to transfer responsibility for its enforcement to the Administrator, Environmental Protection Agency , by 84 Stat. 2086. No substantive change was made to 7 US.C. § 135(a)(2)(c). _— (a) the name and address of the manu- facturer, registrant, or person for who manu- factured; (b) the nanie, brand, or trade-mark under which said article is sold; and (c) the net weight or measure of the con- tent: Provided, That the Secretary may permit reasonable variations. The United States Department of Agriculture issued an interpretation of this statute which has been adopted as a regulation by the Environmental Protection Agency, 40 C.F.R. §162.104. 40 C.F.R. §162.104 provides: : Interpretation with respect to statement of net con- tents. (a) Requirement of the act. The act requires that the label of each economic poison bear a statement of the net weight or measure of the contents. (b) Terms of weight or measure. (1) If there are terms of weight or measure in general use for a particular economic poison which will give accurate information to users as to the quantity of content, such terms shall be used on the label. (d) Permissible variations. (1) If the con- tents are stated as a minimum quantity, the package must contain at least the quantity claimed. No variation below this quantity is permitted and any variation above the contents stated must not be unreasonably large. atm ase mentes olin (2) The net content is considered to be the average net content unless stated as a minimum quantity. Where average net content is used: (i) The average content of the packages in any shipment must not fall below the quantity stated and variation above the quantity stated is permitted only to the extent that it represents deviations unavoidable in good packing practice. (ii) There must be no unreasonable variation from the average in the content of any package. (e) Allowance for loss. A statement of net content “when packed” does not comply with the requirements of the act. The statement must be such that it will be correct as long as the economic poison is subject to the law. Thus, if a product such as borax may lose weight by drying out when stored in paper bags, it must be packed and labeled in such a way that the Statement of net content will be correct when the product is purchased. =— = APPENDIX C. Relevant Portions of the Record Below Testimony of V. L. Hutchings, U.S.D.A. Regional Compliance | Officer (Reporter’s Transcript, pp. 371-394) DIRECT EXAMINATION BY MR. GOODMAN: Q Mr. Hutchings, would you state your present occupation? A_ I am the officer in charge for the compliance staff for the United States Department of Agriculture meat and poultry inspection programs. Q. For any particular region? A Western region. Q How long have you held that position? A Going on two years. Q When did you become compliance supervisor for the western region? A March ’71. Q Prior to assuming those duties did you also have employment with the United States Department of Agriculture? A Yes, sir. I had two years as a compliance officer with the same staff prior to that. And I had 14 years as meat and poultry inspector inside the official establishment. Q Mr. Hutchings, as a compliance and review officer what were your duties? A You are asking me as compliance officer now? Q_ Yes, as an officer prior to assuming your present position. A Okay. My job was to monitor the interstate transportation of meat and poultry products both edible oti and inedible to determine whether they were misbranded or adulterated and take appropriate action if found to be in violation of federal codes. Q Can you tell us how you determined whether a product which .had moved in interstate commerce was misbranded? MR. DUNLAVEY: Objection; immaterial as to how he determined it, your Honor. THE COURT: The objection is sustained. BY MR. GOODMAN: Q Can you tell us what the enforcement procedure was that you followed to determine whether a product was misbranded? MR. DUNLAVEY: The same objection; irrelevant, your Honor. THE COURT: The objection is sustained. MR. DUNLAVEY: We are concerned with state test procedures here. THE COURT: Sustained. BY MR. GOODMAN: - Q_ What are your duties in your present position? A I am supervisor of seven compliance officers in the western area that perform the same duty as I stated prior. Q How many states are there in the western region? A Twelve states including Alaska and Hawaii. Q_ Have you given those inspectors any instructions to follow with respect to making determinations of whether meat and poultry products are misbranded at the retail level? MR. DUNLAVEY: Objection; irrelevant. THE COURT: The objection is sustained. (Brief pause. ) — 16a BY MR. GOODMAN: Q_ As head of the retail compliance, United States Department of Agriculture, have you ever caused meat to be ordered off sale because it was short weight at retail? MR. DUNLAVEY: Objection, your Honor, irrele- vant. THE COURT: The objection is overruled. THE WITNESS: Ordered— BY MR. GOODMAN: Q You may answer. A_ Let me get this—would you restate the question. THE COURT: Read the question. (Record read. ) THE WITNESS: Yes. BY MR. GOODMAN: Q Would you describe the circumstances? MR. DUNLAVEY: Same objection. THE COURT: The objection is sustained. BY MR. GOODMAN: Q Does your unit have a procedure by which it inspects meat food products at the retail level which have been subjected to in-plant inspection under the federal Wholesome Meat Act? MR. DUNLAVEY: Objection, your Honor; USDA procedures are apparently being regarded as irrelevant at this trial unless they stem from a statute or reg so the question is irrelevant. THE COURT: The objection is overruled. MR. GOODMAN: Would the reporter read the question. THE WITNESS: Right. (Record read.) FS ee ee ne ate ote ob 4 > ~ = = MR, DUNLAVEY: I object to that question, your Honor, as irrelevant unless the witness first testifies that that procedure is found in the statutes or regula- tions. THE COURT: That objection is overruled. THE WITNESS: Yes, we dco have a procedure. It is set up adminis— MR. DUNLAVEY: Your Honor, I assume the next question is going to be, “What is the procedure,” and the same objection would be made to it. So before the witness goes ahead may I request that we go question by question. THE COURT: The objection is overruled. There is nothing pending. ; BY MR. GOODMAN: Q_ What is that procedure, Mr. Hutchings? A Okay. The procedure is an administrative proce- dure based on the regulations promulgated under 9 CFR, Section 301 through‘and inclusive of 325. MR. DUNLAVEY: May I take the witness on voir dire before this goes any further? © THE COURT: All right. VOIR DIRE EXAMINATION BY MR. DUNLAVEY: Q Mr. Hutchings, you said the administrative proce- dure that you are about to describe is based on the regulations. Is that procedure stated in the regulations as such? A Could you clarify for me the procedure now? Are you asking me if the exact procedure is set forth or if the regulations are there prescribing the handling of this product or the inspection of this product? os Q My question is whether the procedure that you are going to describe is set out in the regulations as distinguished from just being based on them. A They are not set forth in the regulations. MR. DUNLAVEY: I object to any further con- tinuation of the answer as irrelevant. THE COURT: The objection is overruled. It is admitted only for the limited purpose of explaining the question set forth in the regulations, that is, what are the tolerances for good manufacturing process and good distribution process, if it will shed any light upon that subject. A The procedure is set forth on the basis of the regulations as we explained with the understanding that there is on a complaint basis to go into retail stores, we do not normally make a review in the retail stores. In other words, we don’t go in every day randomly selecting stores and review these, it is on a complaint basis. The review is based on—with the court’s indulgence let me think a minute. (Brief pause. ) Okay. The review is based on the inspector’s knowl- edge and the regulations that prescribe that all meat and poultry products are wholesome and not misbrand- ed. This that would be based—would be based from a consumer or various other sources. The compliance officer would be charged with the responsibility of making inquiry, determining the facts of that complaint and producing that information. If a violation, or it appears to be a violation, in an alleged situation that would be fully documented, all procedures would be fully documented and it would be documented for our legal counsel. ms er : a te BEL ee tte) ~ — = MR. DUNLAVEY: I move to strike the answer because from the limited purpose of what your Honor admitted it has no bearing. THE COURT: Sustained. BY MR. GOODMAN: Q What procedures do you rely on in making your determinations, Mr. Hutchings? Perhaps we can clear it up this way. What are the sources that you might rely on in making a determi- nation of short weight at retail? MR. DUNLAVEY: Objection, irrelevant. THE COURT: The objection is overruled. THE WITNESS: You specifically referred to short weight? BY MR. GOODMAN: Q_ Yes, that is what this case is about. A Short weights would be complaint by another government agency, would be by a consumer, would be by a retailer. They would specify that they have reason to believe is improperly weighed. On that basis we would ask somebody in authority, an agency in authority to check that product and produce that infor- mation to us, the findings of whether that product was in fact in violation or not. Q What other governmental agencies would you rely on to receive this information? A We have many of them, Federal Food and Drug, State Food and Drug, Weights and Measures people. Q Would that be state’s Weights and Measures? A State’s Weights and Measures are, yes. Q_ What kind of information do you receive from state Weights and Measures people to assist you in making your determination? axliinn MR. DUNLAVEY: Objection as irrelevant, your Honor. THE COURT: The objection is sustained. (Brief pause. ) BY MR. GOODMAN: Q How do you make your determination of whether a product is misbranded at the retail level? MR. DUNLAVEY: Objected to, your Honor, un- less the question is limited to short weight. THE COURT: The objection is sustained. Limit it to that. A The agency, whichever agency was doing the work for us, state or federal, would be asked to produce actual evidence of their findings that the product was actually—the net weight was improper or different than that stated on the package. And that procedure would be presented, a thorough procedure, as basis for the calculations or for picking up—holding the product. Q What is it that you consider to be an improper net weight at retail? MR. DUNLAVEY: Objection, your Honor; what he considers is irrelevant. THE COURT: The objection is overruled limited to the consideration the court has indicated. THE WITNESS: Would you state the question. THE COURT: Read the question. (Record read. ) THE WITNESS: Are you asking specific weights or percentages or what more specific? BY MR. GOODMAN: OQ Whatever is the procedure which you use as a compliance officer for the western region. _ SS A If the information that was obtained from the agency that did the weighing indicated that the product was underweight, and this would be a judgment call on my part basically with this information, we’d be talking about more than one package being underweight within that one or two packages. If it got beyond five or six out of say ten or fifteen packages this is reason to believe that there is enough product underweight that we would take action against. Q Would the determination of shortage from the stated label weight be made by the other governmental organization; Would they do the testing? A The other government— MR. DUNLAVEY: Objection as irrelevant and am- biguous. THE COURT: The objection is overruled. THE WITNESS: The Government agency which was doing the testing would advise us of that difference in weight. BY MR. GOODMAN: Q County Departments of Weights and Measures would be such governmental organizations? A Yes, could be. Q Is it a correct statement that you would rely upon the determination as to short weight made by a California County Department of Weights and Meas- ures in making your determination of short weight? A Yes, we would use that method and their informa- tion. Q Have you instructed your compliance officers to visit retail markets when California County Weights —_§2— and Measures officials are making determinations of weight at retail? A No, sir. CROSS-EXAMINATION BY MR. DUNLAVEY: Q You have testified about a procedure that is used in checking net weight at the retail store level. Is that procedure reduced to writing anywhere? A_ No, sir. Q Where did it coe from? A First off we ave not qualified as persons to check net weights, our compliance officers. But other agencies do have that qualification and we have to ask for those agencies to assist us in making these determinations or we have to rely on their information to remove or to have product removed from the market that may be misbranded. Q Who authorized that kind of procedure? (Brief pause. ) A Well, just to tell you the truth, I really don’t know. It is in our administrative handling of our prob- lems within compliance staff. O It does not exist anywhere in writing? It is just some practice that has been followed as a matter of habit, is that right? A Habit— THE WITNESS: Yes. BY MR. DUNLAVEY: Q Are you aware at least to some extent of the content of the Wholesome Meat Act of 1967? ’ q j ter Lene Sep eee Weta ae Ak Fae a OO BD Sd catalina Dotson — = A Yes, sir. Q Are you aware of Section 601(n) which defines the term “misbranded”? A_ Yes, sir. Q And are you aware of that part of that section that says that there shall be an accurate statement of the quantity of contents on the label with respect to weight measure or numerical count? Q Upon what statute or regulation do you base your procedure that the statement of net weight shall be accurate at the time you find the product in the retail store? THE COURT: Where do you find that? THE WITNESS: You have stated part of that 601 (n) which states that this must be properly labeled or contents must be stated. And also the meat inspec- tion regulations which provide the same criteria only it is only— it is further explained. BY MR. DUNLAVEY: Q That really does not answer the question I had asked you. Upon what statute or regulation do you base your requirement that the statement about net weight shall be accurate at the time the product is in the retail store? A_ I do not believe we have a statement on retail stores or regulation on the retail stores’ net weight. Q The Department of Agriculture regulations pro- vide among many other things— == THE COURT: Do not read the provisions of the regulations, Mr. Dunlavey. I am going to have to read them to decide this case. And the fact that this man knows or does not know that they exist does not change that requirement by me. MR. DUNLAVEY: Your Honor, if you can ap- preciate my position here as counsel. This man was allowed to testify because your Honor was interested whether he could shed any light upon what the depart- ment provides or recognizes as reasonable variation for manufacturing practices. THE COURT: That is right. He has told me the practice. MR. DUNLAVEY: Pardon? THE COURT: He has told me the practice. MR. DUNLAVEY: _I would like to explore— THE COURT: That is all I was interested in was the practice so I could find out whether or not it helped shed any light on this distribution practice. MR. DUNLAVEY: I need to explore that, your Honor, for my client’s protection to find out— THE COURT: Then ask the question directly. Is there anything in the regulations that explains what good distribution practice is. That is going to be a big problem in this case, I think. BY MR. DUNLAVEY: Q Let me repeat my question, Mr. Hutchings. Is there— THE WITNESS: Would you kindly restate— THE COURT: Is there anything in the Code of Federal Regulations that explains what good distribution practice means? THE WITNESS: No, sir, not to my knowledge. eR Oy IS Ae ose RY Fe ee ee ea See ae en eee. Se tr oe aitian BY MR. DUNLAVEY: Q Is there anything in the regulations that puts a quantitative limit on a reasonable variation? A_ Not to my knowledge. Q Is there anything in the regulation that puts a limit on the amount of reasonable variation that is to be recognized for loss of moisture that is caused by good distribution practice? Q Is there anything in the statute or in the regula- tions that tells you how much weight a product may lose during the course of distribution practice because of the loss of moisture? A_ Not to my knowledge, no. Q Is there anything in the regulations that puts a quantitative measure on whether a variation from staied quantities of contents is unreasonably large? A_ Not to my knowledge, no. (Pause. ) Q You said that whether a given amount of devia- tion from stated net weight at the retail store amounts to an improper deviation is something that is within your “judgment call,” what did you mean by that? A_ Not having the specific facts I would have to say this: That if an agency produced information that the majority of the product we were talking about was not properly labeled, or in this case the net weights were less than what was stated on the package, it would be my judgment that that product should be removed from it or detained under our authority and the owner of that product notified and asked to correct the deviation. OQ Is there anything within the Department of Agriculture that authorizes you to accept a representa- = S= tion by a California Weights and Measures official as to whether a product is or is not short weight? A There is nothing that authorizes this, that is right. Q Then you do this as a matter of your personal determination and not as a matter of Department of Agriculture policy? A No. I think this is department-wide, or at least our staff-wide. I don’t do it personally, no, sir. Q Is there anything that the department has told you or given to you which you regard as an instruction to use this state determination as your determination? A There is no written material on those lines, that is right. Q Have you ever exercised the judgment as to whether some meat product had lost moisture during distribution then was reasonable as a variation from stated net weight? A Yes, we have. Q Did you base that judgment on any federal statute or regulation? A Would you ask the question that was asked before this that I answered yes to? THE COURT: Read the question. (Record read. ) (Brief pause. ) THE WITNESS: No, we did not. BY MR. DUNLAVEY: Q You are changing your answer? A No. The second question you asked was if we use—if I recall the question right, we used a procedure within USDA or regulations that stated this, is that right? Q Your testimony is that you exercised such judg- ment but the judgment was not based on a federal statute or regulation? A That is right. Q Do you recall what that judgment was when you exercised it? A Sir? Q Do you recall what the judgment was when you exercised it? In short, what did your judgment designate as reasonable variation at the time you exer- cised it? A The information was produced by—can we relate to specific states, sir? THE COURT: Well— THE WITNESS: The Government agency—anoth- er Government agency produced evidence to us that there was product in question due to moisture loss or other loss, not solely water, and that the net weight statement on the package was different from that that the product was weighed. We used the section that you quoted to start with, Section 601. That product was misbranded at that time with that information that that state agency produced for us. BY MR. DUNLAVEY: Q_ How short was it? A Those records I would have to obtain. I cannot tell you exactly. Q Do you recall approximately the percentage that the weight was short from what the label said? THE WITNESS: Can I give you the approximation in ounces rather than rercentages? THE COURT: Certainly. THE WITNESS: If I recall the figures correctly they were between a quarter of an ounce and a half an ounce less than the stated net weight. BY MR. DUNLAVEY: Q. And the stated net weight was how much? A One pound, sir. Q Have you ever given advice to any meat packer as to how much variation you or your group would regard as reasonable as a variation from stated net weight? A Absolutely not. Q_ Why not? A That is not in my realm. I have no authority to tell the packer or advise the packer or any producer what he is allowed to do. And especially in regard to net weights which are administered by another di- vision of our agency and other agencies. Q So if a packer were to ask you how much variations was reasonable variation you would decline to state? A That is right. I am not qualified. MR. DUNLAVEY: No other questions. Testimony of Norman L. Mettert, Los Angeles County Depart- ment of Weights and Measures (Reporter’s Transcript, pp. 335-339) DIRECT EXAMINATION BY MR. GRAHAM: Do you have a deputy sealer’s certificate? Yes. Issued by the State of California? Yes. >OP”O uifiion Q Are you the supervisor in the Compliance Di- vision under whom the bacon inspections were made between the period of time September 1971 to March "72? A Yes. Q Mr. Mettert, as a result of those inspections which resulted in off sale orders were package inspec- tion reports made? A_ Yes, they were. MR. GRAHAM: At this time I would like to submit these documents for identification. THE COURT: Defendants’ A marked for identi- fication. (The exhibits referred to were marked Defend- ants’ Exhibit A for identification. ) THE COURT: All right. A-1 through A-4. (The exhibits referred to were marked Defendants’ Exhibits A-1 to A-4 for identification. ) BY MR. GRAHAM: Q Mr. Mettert, are those package inspection re- ports? A_ Yes, they are. Q_ What dates do those cover? (Brief pause. ) A From October 15, 1971 through March 9, 1972. Q Mr. Mettert, did you make a summary of the conclusions in those package inspection reports covering those dates before you? A_ I did. Q_ Did you prepare a summary sheet? A I did. —90— MR. GRAHAM: I would like to have marked for identification summary sheets prepared by Mr. Mettert. This is designated on the pretrial order as our Exhibit E. THE COURT: We will mark those as B. MR. GRAHAM: Fine. THE COURT: B for identification. (The exhibit referred to was marked Defendants’ Exhibit B for identification. ) (Brief pause. ) BY MR. GRAHAM: Q Mr. Mettert can you tell us what your summary sheets mean with reference to these off sale orders or the package inspection reports? A Each entry designates a lot that was inspected showing the average error either plus or minus of each lot and those lots in which they were ordered off sale. Q How do you distinguish on your summary sheets the differences between the plus errors and the minus errors? A The plus errors are recorded in black pen. The minus errors are recorded in red pen. Those lots in which they were ordered off sale were circled. OQ Mr. Mettert, covering the same period of time did your inspectors inspect the bacon products of Farmer John and Oscar Mayer? A They did. Q At any time during this period did you find that any of their lots were ordered off sale because they were short weight? MR. DUNLAVEY: Objection, your Honor; irrele- vant and it is not before the court. afitan THE COURT: The objection is sustained. MR. GRAHAM: Your Honor, I would like to make an offer of proof that Mr. Mettert prepared summary sheets involving conclusions which his depart- ment found relating to Oscar Mayer and Farmer John. His conclusions being that at no time was any package ordered off sale for being short weight. Contrary to that these brands were substantially overpacked to take care of presumably any deviation which might occur. THE COURT: What's that got to do with this lawsuit? MR. GRAHAM: It has to do, your Honor, with conditions in the industry which you were referring to yesterday I believe. THE COURT: Conditions in the industry? That has nothing to do with conditions in the industry. That has absolutely nothing to do with conditions in the industry. MR. GRAHAM: It has to do with how other packers pack their bacon. THE COURT: That does not show how other pack- ers pack their bacon at all. It doesn’t show it at all. It shows a result of something but it doesn’t show how they do it. MR. GRAHAM: I think it would appear that these statistics demonstrate that they do overpack. The package inspection reports would reflect they overpack. THE COURT: We do not know that, Mr. Gra- ham. They may have some secret that Rath does not have. We don’t know that. This result doesn’t show anything. It has no relevancy to this lawsuit. anlitinen Testimony of Chester A. Jaensen, Rath Packing Compary (Reporter’s Transcript, pp. 122-127) BY MR. GOODMAN: Q Is it a correct statement that Rath cures its bacon in part by injecting pork bellies with a curing solution? A_ Yes, it is. Q Can you iell us what is used in that curing solution? A Yes. Q Would you do so, please? A The curing solution consists of water, salt, sodium nitrate, sodium marithorbate and tripolyphosphate. Q. And what is the purpose of the tripolyphosphate? A_ It supposedly imbibes water. Q Is that a technical way of saying that it causes moisture retention in the belly? A Yes. Q_ It does cause moisture retention? A Yes. Q Do you recall the amount of this curing solution that was injected into the bellies being produced in the Rath Vernon plan between— MR. DUNLAVEY: May I object—excuse me. BY MR. GOODMAN: Q Between June of 1971 and June of 1972? MR. DUNLAVEY: Your Honor, I object to the question as constituting an attempt to probe the way in which the USDA has conducted its in-plant inspection. As I think your Honor has intended to convey, the question is whether the preparation of bacon is carried out under USDA inspection. It is not a question of how the USDA conducts that inspection. On OTS BE Aa THE COURT: That is correct, Mr. Goodman. I do not think we are here concerned with whether the United States Department of Agriculture does a good or bad job and whether the law is a good or bad law. It is just a question of the limitation that law has placed on the state. MR. GOODMAN: Your Honor, in an earlier ruling it was our position that the manual was admissible only to show that Rath was not complying with it. And this question and another series are directed to show that Rath exceeds the standards of that manual whether or not it is of any validity. THE COURT: We are not concerned about wheth- er or not they exceeded, that is the Department of Agriculture, the United States Department of Agricul- ture’s problem. If they don’t do their job I guess there are ways of getting about it but it is not this lawsuit. I am not concerned here, I am concerned as a citizen that they do their job but I am not concerned here as a judge in this lawsuit as to whether or not they are doing a job properly or not. What I am limited to here I think is what limitation that the law Congress has enacted places upon states, what the limitation is. I don’t think it goes beyond that. MR. GOODMAN: If I understand the court’s ruling then testimony as to the amount of water in bacon is not proper before the court. THE COURT: No. Whether Rath puts more water in their bacon than somebody else or somebody else puts more water in their bacon than Rath does is immaterial. The question is what does the law preclude the State of California and its subdivisions from doing in terms enliiines of meat inspection, inspection of meat products and their packages. MR. GOODMAN: Your Honor— THE COURT: That is the question here. There is no other question here. Whether or not what the USDA is doing is good or bad is not in issue. MR. GOODMAN: My questions go to what Rath is doing. What I am trying to establish— THE COURT: Even what they do, whether it is good or bad, is not an issue here. What is in issue is what limitations the Congress has put upon the State. MR. GRAHAM: Your Honor, could I address my- self to that issue? THE COURT: Yes. MR. GRAHAM: It seems to me that it is at issue because you can take the percentage of pumped amount of moisture in a belly and in a piece of bacon, and if it relates to the amount of shrink that bacon is going to have at the time of packaging, before packaging or after packaging, it seems to me that it is relevant to this case. THE COURT: No, it isn’t because that has to do with what job the United States Department of Agriculture is doing. On the state of the evidence thus far they ain’t doing a very good job. MR. GOODMAN: Your Honor, I would like to direct the court’s attention to 9 CFR, Section 317.2(h) (2). Mr. Dunlavey cited that iu his opening argument. THE COURT: His opening statement is not evi- dence. I am not so sure that it even eliminates the issues. Ceit. SE TINE Gon. Ee. EX DUT TS ie ns Ph Wd Nm ks Pane — —95— MR. GOODMAN: Your Honor, my reason for referencing that regulation is that it provides in part for reasonable variations caused by unavoidable devia- tions of good manufacturing practices. And the ques- tion— THE COURT: The question then or the issue is what is good manufacturing practice and what is good distribution practice, and what variances are to be expected as a result of that. After you gentlemen all got through I was going to ask Mr. Jaensen as to what manufacturing process was placed to the bacon after it was sliced. Whether he knew anything about distribution practices and whether there were any criteria in the industry as to how much weight you are going to lose as a result of your distribution practice, that is what is relevant. (Brief pause. ) THE COURT: Maybe there are procedures of the State to determine that. I don’t know. I haven’t heard them yet. MR. GOODMAN: Your Honor, in any case I would like to make the following offer of proof. That offer is as follows: Between August 1971 and June 30, 1972, the Rath Packing Company injected 16 percent moisture into the bacon prior to its being pumped. That the bacon weighed between 12 and 13 percent drain weight for a 9 to 14% pound belly range. That the Rath records show that the smokehouse shrink was between 7 and 9 percent. That the cooler shrink was between 14% and 2% percent. And that the anticipated weight of the bellies after completion of all processes prior to slicing shows that the bacon —96— would contain at least 34% percent added moisture. This is under the process for the 9 to 144% pound bellies. THE COURT: All right. MR. GOODMAN: In addition, your Honor, that for the week ending 9/18/71 for bellies in cure Rath used 18,644 pounds of bellies. But that record of the Rath Packing Company labeled “Material Yield Profit or Loss” for that week end showing actual pounds produced from those same amount of raw product to be 22,548 pounds or an additional 3,904 pounds of bacon. That for the week ending 12/4/1971 the actual pounds used were 116,299 pounds but after smoke and immediately pricr to slice the product showed 119,615 pounds or a net gain of 3,300 pounds. That for the week ending 1/29/72 that the number of pounds of raw product actually used in the bacon product for the Rath Vernon plant, to which all of these records relate, were 190,361 pounds. That the actual amount of bacon produced was 195,816 pounds for a net gain of 12,898 pounds of bacon containing water. veh ee ew ee ee ee APPENDIX D. Title 4, California Administrative Code, ch. 8, subch. 2, Art. 5, Provides: 2930. The definitions in this Article apply to this Article only and do not affect the provisions of any other Article, Chapter or Sub-Chapter. 2931. “Container” means any receptacle or carton, whether lidded or unlidded, into which a commodity is packed or placed, or any wrappings with or into which any commodity is wrapped or put for sale. 2931.1. “Package” means any consumer size “container” and its contents. 2931.2. “Tare Material” shall be synonymous with “Container,” and “Tare” and shall be construed to be the weight of such tare material. 2931.3. “Lot” means the total number of packages of a single item of merchandise in a single size at one location and may contain two or more “sub-lots." "One location" shall be construed to mean “one display” or “one grouping,” and does not, for example, mean all items of the same brand and size stored or kept for sale in one establishment. (a) “Sub-lot" refers to those packages of merchandise within either a "Standard-Pack" lot or “Random-Pack" lot which can be readily identified by a similar or uniform "Lot-Symbol” or grouping. 2931.4. “Lot-Symbol” means the word, letter or numeral (or combination of these), used by the packer or manufacturer to identify packages which were packed or shipped at a given time. 2931.5. CLASSES OF PREPACKAGED COMMODITIES. (a) “Standard-Pack" means consumer size packages of a uniform weight, measure or count, of the same brand or identification. (>) “Random-Pack" means consumer size packages of the same brand or identi- fication but of varying weight, volume, or count. 2931.6. "Sample" designates the group of packages or containers used for testing purposes. (a) “Package Sample Size" shall be as noted in "Procedure," 2933.3, Table I, Column "B” and shall be based on Colum "A" "Lot Size.” (>) "“Sub-groups” shall be formed by recording the individual observations in the order in which they are weighed, measured, or counted. ~ = (c) “Tare Sample Size” shall be as noted in “Procedure,” 2933.3, Table I, Column "D" and shall be based on Column “B” “Package Sample Size.” (Note: When selecting a sample representing a “lot” or “sub-lot”, th= packages shall be selected at random if practicable. Packages shall be selected without regard to appearence. If practicable all samples shall be selected before any weighing, measuring or testing is done. This provides for testing the “lot” or “gub-lot” in an “as found” condition. ) 2931.7. “Retail Level” shall be construed to designate any place of business, or manner of selling any product, in which said product is, or may be, sold, offered or exposed for sale directly to the consumer or user. (Note: When selecting a “sample” to be tested at the “retail level” said sample shall include only those packages selected from 4 "lot" or “sub-lot” at a single point -of -sale location. This shall not preclude the taking of other “samples” from storage facilities, or other locations, within the retail outlet. However, any action to be taken by the inspector with respect to any “Lot” or " sub-lot” shall be based on the “sample” of the specific “lot” or “sub-lot.”) 2931.8. “Wholesale Level” shall be construed to include the packing, manufacturing, warehouse, storage, jobber and distribution levels. (Note: In most cases at the above named levels, products will be found in case lots. The “sample” shall be based on the number of “packages” within the cases of the “lot” or "sub-lot.") 2931.9. “Unsuitable-for-sale” packages are packages that have been opened for testing purposes and cannot, in their opened state, be classed as saleable merchandise. However, packages opened in the place of business where originally packaged are not to be construed as “unsuitable-for-sale” if, by following good sanitary progedures and adequately protecting the public health, the commodity within these packages may be reprocessed or repackaged. This shall be done at the expense of sai [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2175%3A1. Public record. Not legal advice.