Amicus Curiae Brief — Procter & Gamble Co. v. Chicago (No. 74-1109)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ........20ceeceecee8 2

GCumeENes PRMGRNTED 2. occas ccsesssiscvccacsccsoves 3

STATEMENT OF THE CASE ..........2ccccccccccccccccs 3

Reason For GRANTING THE WRIT

Contrary to the Decisions of This Court, the Court

of Appeals Has Incorrectly Held That the Inter-

state Distribution of a Commodity Is Not Entitled

to the Same Degree of Protection From Local Leg-

islative Impediments to Its Free Flow as That Ac-

corded Interstate Carriers and Instrumentalities

ME ED niin boc bond cadiovusastsavanedabin sys 4

COMCEAIMIINT on ccc c ccc nseccccccnsasescescecoces pl

TABLE OF AUTHORITIES

Allenberg Cotton Co. v. Pittman, — U.S. —, 42 L.Ed.

Pi BRS co ickc wiuncb au tavns xidbabateear’ 4, 5,6

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) = 5

Chemical Specialties Manufacturers Association v.

Clark, 482 F.2d 325 (Sth Cir. 1973) ............. 3

Chemical Specialties Manufacturers Association v.

Lowery, 452 F.2d 431 (2d Cir. 1971) ............ 3

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282,

TENOR ee TS ee ee LETT COTTE EEEEE 5

Gibbons v. Ogden, 9 Wheat. 1 (1824) ...........-.... 4

Hood € Sons v. DuMond, 336 U.S. 525 (1949) ........ 6

Lemke v. Farmers Grain Company, 258 U.S. 50 (1922) 5

National Bellas Hess, Inc. v. Department of Revenue,

Se BS SO AOE ode cbavintsedss téshvedee

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ...... 5

Procter and Gamble Co. v. City of Chicago, No. 73-1650

To A WO EE ROOT dp imac ipnbnias bonsbees 3,4

Procter and Gamble Co. v. City of Chicago, No. 74=1109

Cae, eee same G, TRIO) avin coc vescavccescrts 4

Shafer v. Farmers Grain Co., 268 U.S. 189 (1924) .... 5

Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) .. 5

IN THE

Supreme Court of the United States

OctosEeR TERM, 1974

No. 74-1109

THe PROCTER AND GAMBLE ComPANy and FMC

CorporATIon, Petitioners,

v.

Tue Crry or Cxicaco, Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE CHEMICAL

SPECIALTIES MANUFACTURERS ASSOCIATION

IN SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI

=

On March 6, 1975, The Procter and Gamble Com-

pany and FMC Corporation petitioned this Court for a

Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit in the above-captioned

ease. Also on March 6, 1975, the Chemical Specialties

2

Manufacturers Association received from respondent

City of Chicago its express consent to file this brief

as an amicus curiae pursuant to Rule 42 of the Rules of

the Supreme Court of the United States. Further, this

brief is lodged with the express consent of petitioners.

INTEREST OF THE AMICUS CURIAE

Chemical Specialties Manufacturers Association

(hereinafter ‘‘CSMA”’) is a nonprofit membership cor-

poration composed of approximately four hundred

manufacturers, suppliers, packagers, distributors and

marketers of chemical specialty products for house-

hold use. OSMA includes various divisions delineated

according to product groups, including the aerosol,

disinfectant, insecticide, waxes and polishes, detergent,

and transportation products divisions.

The instant proceeding is of particular concern to

CSMA’s member companies, as well as to all manu-

facturers and distributors of consumer and agricultural

commodities whose products are marketed in interstate

commerce. The free flow of consumer products in

interstate commerce is assured by the Commerce Clause

of the Constitution.’ However, in this case the decision

of the Court of Appeals incorrectly restricts the appli-

cation of the Commerce Clause to the means of trans-

port, leaving consumer products subject to such burdens

on movement as a state, county, or city may impose.

The increasing and disparate local regulation of prod-

uets and so-called pollutants has resulted in a patch-

work of inconsistent distribution and marketing re-

quirements for industry and businesses operating in

interstate commerce. No federal court has construed

1U.8. Consr. art. I, § 8.

3:

the Commerce Clause so narrowly as has the court

below. See, Chemical Specialties Manufacturers Asso-

ciation v. Lowery, 452 F.2d 431 (2d Cir. 1971) ; Chem-

ical Specialties Manufacturers Association v. Clark,

, 482 F.2d 325 (5th Cir. 1973). See also, National Bellas

Hess, Inc. v. Department of Revenue, 386 U.S. 753,

759 (1967). It is in pursuit of these concerns that

CSMA lodges this amicus brief in fe of the Peti-

tion for a Writ for Certiorari.

QUESTION PRESENTED

Whether the Commerce Clause protects the inter-

state distribution of a common commodity from unrea-

sonable local restraints.

STATEMENT OF THE CASE

In overturning a district court injunction, the appel-

late court has held that the City of Chicago’s ordinance

barring the sale of phosphate detergents does not

impose an undue burden on interstate commerce and

that therefore the local ordinance is not constitutionally

_ proscribed. The district court, after hearing, foimd that

the ordinance unduly burdened interstate commerce by

interfering with the normal operation of ‘companies

selling consumer products in interstate commerce. The

appellate court simply disagreed, and incorrectly

limited the Commerce Clause protections to interstate

carriers and instrumentalities of transport. Slip Opin-

ion at 10, Procter and Gamble Co. v. City of Chicago,

No. 73-1650 (7th Cir., Jan..15, 1975). The Court of

Appeals did not disturb any of the findings of the dis-

trict court, nor did it find a lack of support in the ree-

ord for any findings. Rather, it fashioned a novel con-

clusion which strips the Commerce Clause of its vitality

/

4

and renders the interstate distribution of consumer pro-

ducts subject to the whimsical interference of every

government instrumentality in the United States. The

appellate court’s conclusion is flatly inconsistent with

the long series of decisions by this Court extending from

Gibbons v. Ogden, 9 Wheat. 1 (1824) through Allen-

berg Cotton Co. v: Pittman, — - US. —, 42 L.Ed. 2d

195 (1974).

REASON FOR GRANTING THE WRIT

Contrary to the Decisions of This Court, the Court of Ap-

peals Has Incorrectly Held that the Interstate Distribution

of'a Commodity Is Not Entitled to the Same Degree of

Protection from ‘Local Legislative Impediments to Its

Free Flow as that Accorded Interstate Carriers and In-

' strumentalities of Trenspett.

The crux of the appellate court’s ruling is:

. we are not confronted with a situation in which

legislation has reduced the effectiveness of a means

of transportation itself. In this context the ordi-

nance is not a burden on interstate commerce, ‘but is

merely a ‘‘burden’’ on a company which happens

to have interstate distribution facilities.

* * *

There i is no impairment in the tiltimate ability to

transport in interstate commerce in the most

efficient and économical manner possible. [Slip

' Opinion at 10, Procter and Gamble Co. v. City of

Chicago, supra. }?

By holding that because an ekraraabillity of trans-

_ port is not involved, a burden on a company’s inter-

state distribution facilities is‘ not a burden on inter-

state commerce, the appellate court’s opinion is flatly

‘2 Also cited in Petitioners’ Brief for Certiorari at A-10, A-11,

‘Procter and Gamble Co. v. City of Chicago, No. 74-1109 in S., filed

_— 6, 1975).

5

inconsistent with this Court’s application of the Com-

mane Mlease Is lemke 1 Romer Grain Somay;

258 U.S. 50 (1922), a local regulation was attacked by

interstate distributors because it interfered with their

method of purchasing, shipment and sale of grain in

the usual course of business. The commodity was sub-

ject to an elaborate local system of grading and inspec-

tion. This Court held that the state legislation unduly

burdened interstate commerce in its effect on the com-

plainant’s business. Accord, Dahnke-Walker Milling

Co. v. Bondurant, 257 U.S. 282, 290-91 (1921); Shafer

v. Farmers Grain Co., 268 U.S. 189 (1924).

This Court has consistently applied Commerce Clause

protections to strike down burdensome local impedi-

ments to commodities moving in interstate commerce.

In Pike v. Bruce Church, Inc., 397 U.S. 137 (1970),

this Court struck down local regulation which forced

a commercial farmer to alter its interstate scheme of

packaging and processing of farm produce. And very

recently this Court reiterated that the Commerce

Clause protection from local interference extends to

any course of dealing in a commodity which traverses

‘‘a long interstate pipeline.”’ Allenberg Cotton Co. v.

Pittman, — U.S. —, 42 L.Ed.2d 195, 201 (1974).

In support of the proposition that Chicago’s ban on

phosphate detergents is not a burden on interstate

commerce because it does not constitute legislation

which reduces the effectiveness of a means of trans-

portation itself, the Court of Appeals noted Bibb v.

Navajo Freight Lines, Inc., 359 U.S. 520 (1959), and

Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945).

Neither Bibb nor Southern Pacific stands for the prop-

osition that interstate carriers and instrumentalities

6

of transport are entitled to a greater degree of Com-

merce Clause protection from locally enforced impedi-

ments than are common commodities which are the

subject of interstate distribution and marketing.

The scope and purpose of the Commerce Clause was

described by this Court in Hood d& Sons v. DuMond,

336 U.S. 525 (1949), and that philosophy was reiter-

ated this Term in Allenberg Cotton Co. v. Pittman,

supra, 42 L.Ed. 2d at 205:

Our system, fostered by the Commerce Clause,

is that every farmer and every craftsman shall be

encouraged to produce by the certainty that he

will have free access to every market in the Na-

tion, that no home embargoes will withhold his

exports, and no foreign state will by custom duties

or regulations exclude them. Likewise, every con-

sumer may look to the free competition from every

producing area in the Nation to protect him

from exploitation by any. Such was the vision of

the Founders; such has been the doctrine of this

Court which has given it reality.

The decision below eannot be reconciled with this

Court’s consistent view of the Commerce Clause and

its application to goods in interstate commerce. The

policy of free trade fostered by the Commerce Clause

has been compromised by the appellate court’s unjusti-

fiable distinction between instrumentalities on the one

hand which aid interstate transportation, and dis-

tribution facilities on the other which aid*the inter-

state flow of goods and products. Contrary to this

Court’s decisions, the Court of Appeals has virtually

insulated from future Commerce Clause challenges the

operation of singular local legislation which impedes

the free flow of consumer products commonly distrib-

uted in interstate commerce.

7

CONCLUSION

For the foregoing reasons, the petition of The Proc-

ter and Gamble Company and FMC Corporation for

the issuance of a Writ of Certiorari should be granted.

Respectfully submitted,

Rosert L. ACKERLY _

Cuar.es A. O’Connor, III

Jor G. HoLLiIncsworTH

1625 K Street, N.W.

Washington, D.C. 20006

Attorneys for the Chemical

Specialties Manufacturers

Association

Of Counsel:

SELLERS, CONNER & CUNEO

1625 K Street, N.W.

Washington, D.C. 20006 ¥