Amicus Curiae Brief — Swift & Co. v. Wickham

ee ee ee

labeling of weights and measures of

foodstuffs offered for retail sale violates

neither the Commerce Clause nor the

a i. The Poultry Products Inspection Act does

9» not prevent state regulation of labels,

weights and measures of such items

-.» when offered for retail sale___.-.....--

II. Whether there is a conflict between fed-

” eral and New York law to which the

New York regulation must yield is not

ripe for decision on this record... .-...-

a ee

3 1. The New York statute regulating the 7

i ane

bt

© 0 or b>

13

16

25

34

35

u cit a

CITATIONS

Cases: ge

Armour & Co. ¥. North Dakota, 240 U.S. 510.. 19,

ALY 14, 20, 2

Campbell v. Hussey, 368 U.S. 297. -..-..---- 16, 19

Cloverleaf Co. v. Patterson, 315 U.S. 148_..__. 23

Corn Products Refining Co. v. Eddy, 249 U.S.

Ri ee Bibel pl Wilbert ed taal 10, 12, 14, 20, 23

Far East Conference v. United States, 342 US.

oe Lochs ep 5 Gal Ace BoA ty BAS ot al 31

Federal Maritime Board v. Isbrandtsen Co., 356

pi NN A ee el lee cS 13, 31

Federal Power Commission v. Arkansas Power &

Light Co., 330 U.S. 802, reversing per curiam,

TREE Ps oe auiccrccusescy- 12, RD

Federal Power Commission v. Metropolitan

Edison Co., 804 U.S; 375.........2--2----- 31

Florida ‘Avooudo Growers v. Paul, 373 U.S.

we 10, 11, 14, 15, 16, 20, 21, 22, 23, 25

Head v. New Mexico Board, 374 U.S. 424_.-. 16,2

Hebe Co. v. Shaw, 248 U.S. 297___._.---- 12, 20, 2

Huron Cement Co. v. Detroit, 362 U.S. 440. 15, 16,%

Kesler v. Department of Public Safety, 369

WE Msc nanavadea ed sawidecc mess 9

Macauley v. Waterman Steamship Corp., 327

REA ek nis atte t eae ean ce oa 2 33

McDermott v. Wisconsin, 228 U.S. 115__----- 20, 25

National Labor Relations Board v. Hearst

Publications, Inc., 322 U.S. 111__.-------- 32

Pacific States Bor & Basket Co. v. White, 296

MM ud on cele se be oss 15, 21,28

Patapsco Guano Co. v. North Carolina, 171

ES SOI RAE .. 11,1415

Peterson Baking Co. v. Bryan, 290 U.S. 570.. 14

Plumley v. Massachusetts, 155 U.S. 461_---- - - 10, 14

Public Service Commission v. Wycoff Co., 344

' ntinued ' ao

“ Public Utilities Commission v. United Airlines, Site

Rice v. Santa Fe Elevator Corp., 331 US. 218_. 19

Savage v. Jones, 225 U.S. 501 11, 14, 15, 20, 23

Schmidinger v. Chicago, 226 U.S. 578 14

sy iy eee Commission v.

- United States v. “‘Rusicka, "329 U.S. 287

United States v. Sing Tuck, 194 U.S. 161

Whitney Nat'l. Bank v. Bank of New Orleans,

379 U.S. 411

Statutes and regulations:

Constitution of the United States:

Federal Food, Drug, and Cosmetic Act, 21

U.S.C. 301 et seq.:

21 U.S.C. 321

21 U.S.C. 331

Meat Inspection Act, 34 Stat. 1260, 21

Poultry Products Inspection Act, 71 Stat. 441,

as amended, 21 U.S.C. 451 et seq.:

Sec. 2, 21 U.S.C. 451

Sec. 3, 21 U.S.C. 452

Sec. 4(n), 21 U.S.C. 453(n)

Sec. 5, 21 U.S.C. 454

Sec. 6, 21 U.S.C. 455-:

See, 6,31 USB.C. 407 2322S see:

Sec. 8(a), 21 U.S.C. 457(a)... 3, 12, 17, 19, 26, 38

Sec. 8(b), 21 U.S.C. 457(b) 5, 17; 26, 39

Sec. 9(c), 21 U.S.C. 458(c)

Sec. 9(d), 21 U.S.C. 458(d)

ly:

Statutes and Regulations—Continued -. pial

Sec. 9(e), 21 U.S.C. 458@> 222-2 2.2. cos

See. 10, 21 USC 4802. ci ics

Seo! 1G, SUSC, 4645. 5 once sous 23, 41

Sec. 18, 21 U.S.C. 467__----. Se 49

Sec. 18(a), 21 U.S.C. 467(a)_.___- 17, 21, 22, 49

. See. 18(b), 21 U.S.C. 467(b) ------.-..-- 28, 42

§ US, Gree. eer ets ee eek 26

SAR AOE L dist Caesesa sl yal pes ee 5, 26

Greer PO 80 2 F255" bocack, janet. 5, 26

BU, MoS dhe okie) oy tale leis | 5, 26

7 ee es eke ic hae, - Vy eke Sead 5

7 aii GEO s a ce sued - Sad newt 19

ae et eg oe 5,9

New York State Agriculture and Nienkets

Law, § 193 (McKinney’s Consolidated Laws

of New York Annotated, Book 2-B, Cum.

Pocket Pt., 1964)____.. ale basa 2,3, 5, 18, 43

7 C.F.R. 81.125-81.156. Diciaitide Gbues i uhe ds ~— 26

U@. Paw. Skaltey 0).194s-.6i65- ss d-- oes 4

1 Ae SE so oh es ame de OR ei - 12

oe Re te ee 5

7 C.F.R (1965 Cum. Supp.) 81.131(f)__-___- 6

Ged. seem. 1a 760s on 2 ie ci Sunt 26

11] Fed. Reg. 177A—-233_-.--..-32-23-221--- 26

TS Wh OR Gt oid ev ndh cecahae 26

Miscellaneous:

Rise Came. feee. Oae0 co. 3d tc cae 18

10s Gomme, 16G, O201 6 552 5 sk one 19, 20, 21

PG AME, 2000. smeete. -) 2 j- i desi cae_-- 20, 21

103 Cong. Rec. 5239... ___--- Fe ES, 18, 19

WO See, Pee, Gee. 5s 5k ee 18

Bie Ge, eee, TAO Ses pes ee 18

BOp GOue OO. $0940 ee cc . 18, 19

108 Cong. Rec. 11;117-20.- 2... -2_22-..2--- 19

103 Cong. Rec. 11,121-23.___.._._.._.____- 18, 19

Miscellaneous—Continued

103 Cong. Rec. 11,718

103 Cong. Rec. 15,170

H. Rep. No. 465, 85th Cong., Ist Sess..._.._. 20, 22

Hearings before the Senate Committee on

Agriculture and Forestry on S. 313, S. 645,

and 8. 1128, 85th Cong., Ist Sess., Feb. 27

18

Hearings before the Subcommittee on Poultry

and Eggs of the House Committee on

Agriculture, 85th Cong., Ist Sess., March 6,

7, 8, and 15, 1957

S. Rep. No. 195, 85th Cong., Ist Sess

dee Sgrne Gout of he Wied ine

Octopus Teen, 1965

No. 9

Swirt & Company, Inc., anp ARMOUR AND Co.,

APPELLANTS

v.

Don J. WicKHAM, COMMISSIONER OF AGRICULTURE &

Markers or New York

ON APPHAL FROM THE UNITED STATES DISTRIOT COURT FOR

THE SOUTHERN DISTRIOT O¥ NEW YORK

OPINION BELOW

The opinion of the United States District Court for

the Southern District of New York (R. 376) is re-

ported at 230 F. Supp. 398.

JURISDICTION :

The initial judgment of the three-judge district

court was entered on June 12, 1964 (R. 396) and the

amended judgment on July 17, 1964 (R. 397). The

notice of appeal was filed on August 10, 1964 (R. 398).

Appellants invoke the jurisdiction of this Court under

28 U.S.C. 1253. ;

(1)

2

QUESTIONS PRESENTED

1. Whether New York’s requirements relating to

pane re ing) of weigh apts of neta focdtats

‘th i Habib ander & Commerce Clause

or the Fourteenth.Amendment, as applied to frozen

stuffed turkeys offered by appellants for sale in that

State.

2. Whether the Poultry’ Prodtcts Inspection Act,

21 USC, 451,, preempted. the field, precluding the

application of New York’s.,weight-labeling require-

ments in respect of poultry inspected under that Act.

, 3, Whether the Poultry Products Inspection Act, as

applied to frozen. stuffed turkeys, is in conflict with

the application of New York Agriculture and Markets

Law, § 193.3.

STATUTES INVOLVED

The Sa provisions of the Poultry Products

Inspection Act,: 21 U.S:C. 451 et seqg., and the New

York Agriculture and Markets Law, § 193, are set

forth in the appendix, infra, pp. 35 et seq.

STATEMENT

1. BACKGROUND

Appellants, Swift & Co. and Armour and Co., are well

known meat packing companies with a nationwide busi-

ness. Both companies prepare frozen stuffed turkeys

at plants in Minnesota and Wisconsin and market the

birds throughout the United States in frigid form.

The problem presented in this case is whether the con-

sumer is to be advised, before her purchase, precisely

how much of this item is bird and how much bread.

It is on this issue which the Department of Agricul-

3

ture appears: to differ from the State of New. York,

- Section 198.3 of the New York Agriculture and

Markets Law provides that (emphasis added ) :

All food and food. products offered for sale at

retail and not in containers shall be sold or

offered for sale by net weight, standard measure

or numerical count under such regulations as

* may be prescribed by the commissioner.

New York State Commissioner of Agriculture _

Markets Wickham has interpreted ‘“‘net weight,”

used in the New York statute, to require ake

stuffed turkeys offered for sale in New York to bear

labels showing, separately, the weight of the turkey

itself and of its stuffing, or at least giving the unstuffed

weight of the bird along with the combined weight of

the entire product (R. 238). Swift was convicted and

fined in a court of that State for failing to comply,

having offered frozen stuffed turkeys for sale in New

York with labels bearing caly the aggregate weight

(R. 243-244). Swift did not appeal from that

conviction.

The Poultry Products Inspection Act, 21 U.S.C,

451 ff., requires poultry products shipped in interstate

commerce to be inspected for wholesomeness by fed-

eral officials and to bear labels containing, énter alta,

(§ 8(a) of the Act, 21 U.S.C. 457(a), emphasis added) ;

[A] statement of ingredients if fabricated from

two or more ingredients including a declaration

as to artificial fluvors, colors, or preservatives,

if any, [and] the net weight or other appro-

priate measure of the contents * * *.

“188-010 —65——2

4

Under regulations of the Secretary of Agriculture,

such labels must receive prior approval by designated

officials in the Department of Agriculture before they

may be used. 7 C.F.R: 81.126, 81.127. Swift and

Armour submitted to the Department of Agriculture

sample ‘frozen turkey labels listing the weight of the

turkey and the weight of the stuffing separately and,

in the ease of the Swift proposal, the combined weight

as well (R. 281, 287). Both labels were disapproved

by the head of the Poultry Products Section of the

‘Inspeetion Branch of the Poultry Division of the

Department of Agriculture’ s Consumer and Market-

ing Service (formerly the Agricultural ee

Service) (R. 167-168). _

The gist of the Poultry Products Section’s com-

ments at ‘the time of rejecting the proffered labels

and in a later amplifying letter was that: (1) “The

net weight shown in the manner proposed would

be- confusing to the consumer,” (2) “it would be

impossible for the consumer to verify accurately any

weight other than total net weight’’ because ‘“‘dur-

ing the defrosting of the frozen stuffed turkey the

natural juices from the carcass are absorbed by the

dressing,” (3) the turkeys would have to be weighed

once before and again after stuffing and the initial

weight slip might become ‘detached from the

tarkeys during the ‘handling,” resulting “in im-

proper weights being shown on the product,” (4)

“double weighing” would require “the product to be

at room temperature for a longer period of time’’ and

“could permit unrestricted growth of the normal. bac-

terial flora,’”’ and (5) the Poultry Products Inspection

Act is interpreted as requiring the net weight of the

5

entire poultry product, ée., turkey plus stuffing, to

be shown on the label (R. 279-285).

“Once a turkey has been frozen it is not practicable

w thaw it later in order to determine the separate

weight ‘of ‘the stuffing in each bird’ (Rv 233). Thus,

the effect of this initial ruling by lower-echelon Agri-

wulturé officials was to prevent Swift and Armour

from complying with the New York labeling eee:

ments.

AWthough the Poultry Products Inspection Act,’

as well as the’ Seeretary’s own’ regulations,’ ex-

pressly ‘afford ‘one whose proposed label ‘has not been

approved for use the right to a full-dress administra-

tive hearing before the Secretary of Agriculture, or

his delegate, neither Swift nor Armour availed them-

selves’ of this opportunity (R. 121). Instead, after

receiving the ‘letters of disapproval from the head of

the Poultry Products ‘Section, Swift and Armour

commericed the instant suit in the United States Dis-

trict Court for the Southern District of New York

against Commissioner Wickham.

2. PROCEEDINGS IN THE DISYRICT COURT

_ In their complaint (R. 1-10), Swift and Armour

requested that: (1) a three-judge district court be

convened under 28 U.S.C, 2281; (2) the application

of Section 193 of the New York Agriculture and Mar-

kets Law requiring them to label frozen stuffed tur-

keys with the separate weights of fowl and filler be

declared in violation of the Commerce Clause, the

18 8(b). of the Act, 21 U.S.C. 457(b); see also 7 U.S.C. 194,

5 U.S.C. 1004, 1006 and 1007.

*7 OF R. 81.130(c).

6

Supremacy Clause, and the Fourteenth Amendment

to the United States Constitution; (3), the court de;

clare that Swift; Armour and their vendees had the

right to.sell frozen stuffed turkeys in New York State

bearing labels approved by the Department of Agri-

eultare only; and (4). Commissioner Wickham be

enjoined from interfering with their sale in New

York State of frozen stuffed turkeys so labeled. A

three-judge district court, comprised of Circuit Judge

Friendly and District Judges Croake and Wyatt, was

duly convened to try the cause (R. 41).

. At the trial, William E. Hauver, Deputy Director

of: the Poultry Division, Consumer and Marketing

Service, United States Department of Agriculture,

was called as a witness by plaintiffs. Mr. Hauver

testified that it was the Department’s policy to permit

only .a single net weight. to be shown on the label of

any combination poultry product (R. 117). He ae-

knowledged, however, that until the Department had

disapproved the Swift and Armour labels it had per-

mitted frozen stuffed Rock Cornish game hens‘ to

be marketed with labels stating separately the weights

of the Cornish hen and its stuffing (R. 117-118, 142,

145).* On cross-examination, he stated that the term

“net weight”’ is defined neither in the Poultry Prod-

ucts Inspection Act nor in the Secretary’s regulations

*A Rock Cornish game hen is a type of chicken, slaughtered

when young and immature (5 to 6 weeks old), weighing less

than two pounds ready-to-cook (eviscerated). 7 C.F.R. (es

Oum. Supp.) 81:131(£)\(4)\(i).

* Appellants’ contention that the Department of Agricultare

has a “long-standing policy against multiple weight statements”

(Appellants’ Brief, p. 4) is thus belied by the facts.

7

(R. 131, 134-135). Mr. Hauver also conceded that

the Department had never conducted any tests to de-

termine whether a double-weighing process to ¢s-

tablish separate weights was in fact feasible (R. 129-

130, 150), and that, during the years when the De-

partment permitted frozen stuffed Cornish game hens

to be marketed with labels noting the weights of the

bird and the stuffing separately, no complaint was

received from any consumer claiming to have been con-

fused by such labels (R. 149).

An employee of Swift testified that, under his com-

pany’s present procedures, about thirty minutes

elapsed between the time a turkey is placed on the

assembly line until it is sent to the freezer completely

stuffed, weighed and labeled (R. 80). An additional

weighing, he testified, would require only one-third

(14) of a minute more per bird (R. 81). A witness

from Armour stated that their process consumed

forty-five minutes per bird (R. 104), and agreed that

an additional weighing would require less than half

& minute per bird (R. 106). The Armour witness

further testified that the additional fifteen minutes

during which Armour kept the turkeys at room

temperature did not affect their wholesomeness

(R. 105, 106).

Both the Swift and Armour witnesses stated that a

fixed amount of stuffing is not placed in each bird (R.

71, 77-78, 96); rather, each turkey is stuffed by

machine until it presents an attractive appearance

(R. 71, 72, 101-102). The amount forced into each

carcass varies from 16% to 35% of the weight of the

bird (R. 72, 76, 97-99), and there is no way in which

8

anyone can tell accurately from the appearance how

much stuffing is contained in a given turkey (R.

75-76). 7

Mrs. Esther E. Hendler, an inspector of the New

York City Bureau of Weights and Measures, testified

that as part of her job she had purchased some “rozen

stuffed turkeys prepared by Swift... She recalled that

one of ‘the birds whose net weight was marked as

seven pounds, four ounces, contained two pounds, two

ounces of stuffing and only five pounds, two ounces of

turkey (R. 243). In other words, frozen stuffing con-

stituted 30% of her purchase.

3. THE DECISION BELOW

The three-judge district court dismissed the com-

plaint. In an opinion by Circuit Judge Friendly, the

court found that there could be significant variations

in the weight of stuffed birds of the same size, even

when the processing was done by reputable packers

such as Swift and Armour, and that therefore a label

showing only the combined weight might not fully in-

form the consumer. Noting that the New York label-

ing requirement was applicable to local as well as to

interstate packers, did not operate to favor local com-

petitors, afforded reasonable protection for the State’s

consumers, and that compliance would not be unduly

burdensome on interstate commerce, the court con-

cluded that the New York statute did not violate the

Commerce Clause and rejected plaintiffs’ Fourteenth

Amendment argument as ‘‘patently baseless.’’ (R.

379-380.)

9

Next, the district court made a careful analysis of

the Poultry Products Inspection Act. It concluded

that the Act was aimed at insuring the wholesomeness

of fowl marketed in interstate commerce and that the

provisions regarding labeling are merely incidentai to

the primary provisions for inspections of poultry.

~ ‘Phus the court held that the federal Act was not in-

tended to preclude the States from their traditional

regulation of weights and measures for the protection

of local consumers. With regard to plaintiffs’ claim

that there was a conflict between the federal and State

regulations, the court ruled that where the incon-

sistency hinges on a factual determination, a citizen

desiring freedom from State regulations does not dis-

charge his burden by obtaining a letter from a sub-

ordinate federal official, “at least when Congress has

laid out a fact-finding procedure as to which the state

could be given notice and an opportunity to be heard”

(R. 390). The court concluded that it was highly un-

likely that the Department of Agriculture, after a full

departmental hearing, would reject New York’s label-

ing requirement. Thus the court interpreted the De-

partment of Agriculture’s letter as rejecting only the

particular labels submitted, and not all supplementary

dual weight labels. (R. 381-390.)

Finally, the court considered whether this was a

proper case for a three-judge court under 28 U.S.C.

9981. It concluded that, under the decision in Kesler

v. Department of Public Safety, 369 U.S. 153, this was

a borderline é¢ase. Out of an abundance of caution,

the court directed that judgments be entered dismiss-

ing the complaint both in the name of the three-judge

10

court and in the name of District Judge Croake, the

single judge who would otherwise have tried the cause

and who stated he would have reached the same result

independently. (R. 390-392.)

‘This appeal followed. The Court ordered appellee’s

motion to affirm the judgment below or to dismiss the

appeal held in abeyance pending a hearing on the

merits ani invited the Solicitor General to file a brief

on the merits. 379 U.S. 997. This brief for the United

States as amicus curiae is filed in response to that

invitation.

Feri SUMMARY OF ARGUMENT

| I.

New York’s requirement that stuffed poultry of-

fered for sale to consumers in that State bear labels

showing separately the weight of the bird and the

stuffing violates neither the Commerce Clause nor the

Fourteenth Amendment. This Court has long recog-

nized that the States have a legitimate interest in

protecting their citizens against deception in the re-

tail sale of food products. Plumley v. Massachusetts,

155 U.S. 461, 472; Armour & Co. v. North Dakota,

240 U.S. 510; Corn Products Refining Co. v. Eddy,

249 U.S. 427, 431-432; Florida Avocado Growers Vv.

Paul, 373 U.S. 132, 143-146. The amount of stuffing

in a frozen turkey varies from bird to bird and

cannot be determined by the retail purchaser from the

appearance of the poultry product alone (R. 75-76).

Compliance with New York’s non-discriminatory

‘“‘dual-weight”’ labeling requirement would require

only an additional fraction of a minute per bird

(R. 81, 106); it is thus no more burdensome than

ll

similar State requirements upheld in the past. See,

¢g., Patapsco Guano Co. v. North Carolina, 171 U8.

345; Savage v. Jones, 225 U.S. 501.

> Ad

The provisions of the federal Poultry Products In-

spection Act dealing with labeling, 21 US.C, 457, do

not pre-empt New York’s power to impose higher

labeling standards for retail sale in that State.

“[F Jederal/ regulation of a field of commerce should

not be deemed preemptive of state regulatory power

in the absence of persuasive reasons—either that the

nature of the regulated subject matter permits no

other conclusion or that Congress has unmistakably

so ordained.” Florida Avocado Growers v. Paul, 373

US. 132, 142.. Neither the statutory language nor

the legislative history of the Poultry Products In-

spection Act reveals any congressional intention to

preempt the traditional State regulation of weights

and measures on retail food items. Rather, Congress

was focusing: on: the discrete problem of insuring the

_ wholesomeness of poultry during production, slaugh-

ter and interstate shipment. |

Moreover, nothing in the nature of the subject mat-

ter, i.e., the labeling of poultry products offered for

retail. sale; precludes concurrent federal and State

regulation. Indeed, this Court has .often upheld

State laws requiring disclosure of weights and in-

gredients on items sold at retail within their borders

which required more information than the applicable

federal statutes. See, ¢.g., Savage v. Jones, 225 U.S.

788-010— 65——8

12

501; Hebe Co. v: Shaw, 248 U.S, 297; Corn sare:

Refining Co. v. Eddy, 249. U.8, 427,

Iil

While an otherwise proper State law must yield to

a valid conflicting federal regulation, we agree with

the three-judge district court that the question of con-

flict between State and federal law is not ripe for

resolution on this record. Both the Poultry Products

Inspection Act and the Secretary of Agriculture’s

regulations call only for a disclosure of the “net

weight or other appropriate measure of the contents,”

21 USC. 457(a); 7 C.F.R. 81.130(3). On their

face at least, they do not necessarily conflict with

New York’s requirement. Appellants’ allegation of

conflict. between New York law and federal regulation

rests entirely on the ruling of lower-echelon Agricul-

ture employees who summarily rejected appellants’

proffer of ‘‘dual-weight” labels. Although appellants

had a statutory right to a full administrative hearing

{in which New York could have intervened), with

review by the Secretary of Agriculture’s Judicial —

Officer, they chose to let the matter rest after a brief

exchange! of correspondence with subordinate agency

employees.

Seund principles of wiminishtative law preclude

appellants from asking: a federal court to enjoin an

otherwise valid State law on grounds of “conflict”

without first obtaining an authoritative determination

from the: highest available administrative level that

such a clash exists. See, ¢.9.,. Federal Power Com-

mission Vv. Arkansas Power & Light Co., 330 U.S. 802;

13

Public Utilities Commission v. United Air Lines, 346

U.S. 402; Federal Maritime Board v. Isbrandtsen Co.,

356 U.S. 481, To begin with, it is by no means cer-

tain that, after an administrative hearing at which

New York can intervene and fully present its position,

the agency’s. high level] officials will agree with their

subordinate employees’ position. Moreover, a judicial

ruling at this stage of the litigation might prejudice

the public’s interest in proper administration of the

Poultry Produets Inspection Act. The present rec-

ord is confined to the material thought relevant by

the litigating parties—New York and appellants.

Neither the views nor the supporting evidence of the

Department of Agriculture have been fully developed

here. Finally, affirmance of the district court’s deci-

sion will prevent premature, and perhaps wholly un-

necessary, judicial resolution of complicated and

delicate questions involving hoth technical data and

federal-State relationships.

ARGUMENT

I.

THE NEW YORK STATUTE REGULATING THE LABELING OF

_ WEIGHTS. AND. MEASURES OF FOODSTUFFS OFFERED FOR

. RETAIL SALE VIOLATES NEITHER THE COMMER CE CLAUSE

NOR THE FOURTEENTH AMENDMENT

We agree with the court below that New York

Agriculture and Markets Law, § 193, regulating the

labeling of weights on retail foodstuffs sold in New

York, does not violate either the Commerce Clause or

the Fourteenth Amendment. This Court has long

14

recognized that “the States have always possessed

a legitimate interest in ‘the protection OF Se, e [their].

people against fraud and deception in the sale of food

products’ at retail markets within their -borders.”

Florida’ Avocado Growers v: Paul, '313'U'S. 132,'144

(1963), quoting’ from Plumley v. Massachusetts, 155

U. 8. 461, 472 (1894). In short:

_ [I]t is too plain for argument that a manufac-

turer or vendor ‘has no constitutional right to

sell goods without giving to the purchaser fair

information of! what it is that is being sold.

The right of a manufacturer. to maintain

secrecy as to his compounds and processes must

_,be,held subject to the right of the State, in the

exercise of its police power and in promotion

of fair dealing, to require that the nature of the

- product be fairly set forth: * * * [Corn Prod-

°. 'wete Ref. Co. v. Bddy,; 249’ OS: 427, 431-490,

seta comer th v: North Dakota, 240

U.S. 510.)

The Court has in the ee rajestoa aintienatn

based on such Constitutional grounds, to simi-

lar State legislation adopted in the interest of con-

penser ‘So long'as the State regulation is applied

See, 2 e9-5 “Patapsco Guano Co. v. North Carolina, 171 US.

845 (State legislation requiring, inter dlka, net’ weight in pounds

to be labeled on a commodity container) ; Savage v. Jones, 225

U.S. 501 (Indiana requirement that certain concentrated feed be

labeléd “with ‘ingredieiits ‘and net! weight © in pounds);

Sehmidinger v.. Chicago, 226 U.S. 578 (Chicago ordinance re-

quiring b’_d tobe sold at retail, only in loaves of designated

pound multiples); Armour & Co. v. North Dakota, 240 US.

510 (State law requiring lard to be sold only in designated

pound multiples) ; Corn Products Refining’ Co, v. Eddy, 249 US.

427 (Kansas statute requiring contents of proprietary foods to

be stated on label); Petersen Baking Co. v. Bryan, 290 US.

We

15

evenhandedly to local and out-of-State interests alike

and its incidental effect on interstate commerce is not

unduly burdensome, it transgresses neither the Com-

merce Clause nor the Fourteenth Amendment, Huron

Cement Co. v. Detroit, 362 U.S. 440, 442-444; Florida

Avocado Growers ¥. Paul, 373 U.S. 132, 143-146; »

‘The-record before the Court. leaves no doubt that

the retail sale of frozen stuffed turkeys. is an ap-

propriate subject of. the .State’s. surveillance. . The

proportion of bread and bird in any given stuffed

turkey cannot be ascertained by. the consumer before

purchase in the absence of such information on its

label (R. 75-76). Compliance with New York’s re-

quirement thatthe label show separately the weight

of: the fowl and the filler is certainly no more burden-

some than similar State labeling regulations pre-

viously upheld by the Court in Patapsco Guano Co.

¥i North Carolina and Savage Vv. Jones, supra, n. 5,

p.14. In fact, the record indicates that the additional

weighing necessary here would require but a fraction

of'a minute per bird (R. 81, 106); that another ecom-

pany marketed frozen stuffed Cornish game hens (im-

mature chickens) under such dual weight labels for

a substantial. period without apparent. difficulty (R.

149-150); and: that appellants themselves were fully

prepared to do likewise with stuffed turkeys until

approval of their “dual weight’’ label was withheld.

570. (Nebraska. law fixing standard size for loaf of bread);

Pacific States Bow & Basket Co. v. White, 296 US. 176 (Ore-

gon law requiring strawberries to be sold only in hampers of

& specified size) . ey fare

16

TI.

THE POULTRY PRODUCTS INSPECTION ACT DOES NOT PRE-

VENT STATE REGULATION OF LABELS, WEIGHTS AND

MEASURFS OF SUCH IT2MS WHEN OFFERED FOR RETAIL

Although regulation of the weights and measures

used in retail food sales is an entirely appropriate

subject for New York’s police powers; Congress has

included a provision in the Poultry: Products Inspec

tion Act requiring ‘the labels of inspected poultry to

disclose the “‘net weight or other appropriate measure

of the con ” $8 of the Act, 21 U.S.C. 467,

Appellants urge that this pre-empts further regula-

tion of such labels by New York State. We disagree.

To be sure, State legislation which affects interstate

commerce must yield to federal enactments which pre-

empt the field of regulations. See, e.g., Campbell v.

Hussey, 368 U.8. 297. However, it will not light)y be

presumed that Congress intended to occupy an entire

area of the law and to exclude all State regulation

touching on the same subject. “[{F]ederal regulation

of a field of commerce should not be deemed pre .

emptive of state regulatory power in the absence of

persuasive reasons—either that the nature of the regu-

lated subject matter permits no other conclusion or

that the Congress has unmistakably so ‘ordained.”

Florida Avocado Growers v. Paul, 373 U.S. 132, 142.

See also, Head v. New Mexico Board, 374 U.S. 424,

429-432; Huron Cement Co. v. Detroit, 362 U.S. 440,

Our examination of the Poultry Products Inspee-

tion Act and its legislative history persuades us, for

17

yeveral reasons, that Congress did not intend this

legislation to preclude State regulation of weights and

measures on poultry sold at retail.

1, The Poultry Products Inspection Act contains no

express prohibition against State regulation . of

weights, measures and labels used in connection with

the retail sale of poultry products. While the per-

tinent provisions of the Act detail certain matters

which must appear on the labels of inspected poultry

products, they do not expressly preclude additional

information, but only matters which are false or mis-

leading’ §§8 (a), (b) and 94 (c), (4), (e) of the

Act, 21 U.S.C. 457 (a), (b) and 458 (c), (d), (e). In

fact, the labels which were approved for appellants’

use on stuffed turkeys themselves contain information

in-addition to that required by Section 457(a), to wit,

special cooking instructions (R. 38-40).

9 Nor do we think that the Act implies any such

prohibition. Both the statutory language and the

legislative history of the Act indicate, we believe, that

Congress was focusing upon the need for nationwide

federal inspection of poultry shipped in interstate

commerce. The Act itself reveals that Congress rec-

ognized that a great volume of poultry products were

“consumed throughout the Nation” and constituted

“an important source of the Nation’s total supply of

food’’; Congress was concerned that State inspection

programs might be inadequate to keep “* [u}nwhole-

gome and adulterated poultry products [out ee

_*See the discussion of § 18(a) of the Act, 21 U.S.C. 467,

infra, pp. 20-23.

18

the channels of interstate or foreign commerce * * *,”

§20f the Act, 21 U.8:€. 451..: Thus, the Act explicitly;

declared [it] to be the policy of Congress to

provide’ for the inspection of poultry and

: poultry products by the inspection service as

herein provided to prevent the movement in

interstate or foreign commerce or in.a designated

| major consuming area 0 poultry products

which are unwholesome, a iltetated,’ & other-

wise unfit for human food.’ 3 3 aod of the Act,

21 U.S.C. 452.)

Neither the legislative findings nor the declarations of

policy reflect any Congressional concern with com-

prehensive regulation of weights and measures. In-

deed, while the dozens of’ witnesses’ who testified in

support of this legislation before the sponsoring

House and Senate Committees were almost unani-

mously in favor of compulsory poultry inspection, not

one stiggested federal control of the labeling of

weights and measures.”

Similarly, the congressional debates reveal Congress’

concern with a problem which the States could no

longer control. The poultry industry had developed

in the previous half-century from a fairly local oper-

ation to one nationwide in‘seopé, involving the inter-

state shipment of billions of birds annually." As a

result, individual State health inspection programs

had proven inadequate. Much of the poultry came

"See Hearings before the Senate Committee on Agriculture

and Forestry on 8. 313, 8. 645, and 8. 1128, 85th Cong., 1st

Sess., Feb. 27 and 28, 1957; Hearings before the Subcommittee

on Poultry and Eggs of the House Committee on Agriculture,

85th Cong., Ist Sess., March 6, 7, 8, and 15, 1957.

* See 103 Cong. Rec. 5228, 5239-40, 11,114-15, 11,121-23.

19

annually.” .. The Poultry, Produets,

"We therefore submit that Section 8(a) of the Act

(21 U.S.C. 457(a))—which requires, inter alia, ‘‘net

weight” labels on. inspected poultry products—was.

merely intended to “round * * * out” the Act’s

principal purpose of providing a mandatory nation-

wide inspection service to insure the wholesomeness

®& Gee 108 Cong! Rec. 5287, 11,115, '11,718:

1 Gee 108 Cong. Rec. 5239, 11,117-20, 11,123... c]

“Thus the situation here is totally unlike that in Campbell

v: Hussey, 868 U.S. 297, where the statutory language and the

legislative history of the Federal Tobaceo Inspection Act

revealed, a, congressional intent to establish a single national

standard of tobacco labeling which pre-empted State regula-

tion, The Tobaeco Act expressly stated that its purpose\'was

to create “uniform standards of [tobacco} classification” which

would. be. “the, official standards of the United States”. 7

USC. Site, b. | horiot ot ite

Nor. does Rice v. Santa Fe Elevator Corp, 384. US. 218, :

agsist appellants. .The Court. based its holding in that: case

on the United States Warehouse Act’s “unequivocal” legislative

history. 381 U.S. at 283-235.

788-010—65-——4

20

of poultry. H. Rep. No. 465, 85th Cong., Ist Sess,

p. 1. As the lower court phrased its conclusion, the

Act’s “provisions as to labelling * * * are merely inci-

dental to the primary provisions for inspection of

poultry products.” (R. 386, emphasis added.)

There was thus no manifest congressional purpose to

strip the States of their traditional power to protect

their consumers through regulation of weights and

measures on the labels of goods‘sold in the State.

Cf., Florida Avocado Growers v. Paul, 373, U.S. 132,

145; 103 Cong. Rec. 5237-5238 (remarks of Senator

Holland).

3. The Poultry Products Inspection Act provisions

relating to labeling are similar to those contained in

the Federal Food, Drug, and Cosmetic Act. 21 U.S.C.

321(k), (1), (m), and 331 (a), (b), (i), (k). This

Court has consistently held that the Food, Drug, and

Cosmetic Act did not preempt State regulation of

labels and has upheld State laws requiring disclosure

of weights and ingredients on items sold at retail

within their borders, which went further and required |

more information than the applicable Federal Food,

Drug, and Cosmetic Act. Savage v. Jones, 225 U.S.

501; Armour & Co. v. North Dakota, 240 U.S. 510;

Hebe Co. v. Shaw, 248 U.S. 297; Corn Products Refin-

ing Co. v. Eddy, 249 U.S. 427." In the circumstances,

% McDermott v. Wisconsin, 228 U.S. 115, is not contrary.

There, State regulations would have required removal of a

federally approved label and were for that reason disapproved.

The right to require information on the label in addition to

that furnished under the federal Act was specifically upheld in

the subsequent case of Corn Products Refining Co. v. Eddy, 249

U.S. 427.

21

it seems unlikely that Congress intended parallel legis-

lation to pre-empt State regulation without expressly

eo stating. Cf. Pacific States Box & Basket Co. Vv.

White, 296 U.S. 176; Florida Avocado Growers V.

Paul, 373 U.S. 132. .

To be sure, Section 18(a) of the Poultry Products

Inspection Act does provide that (21 U.S.C, 467(a)):

For the purpose of preventing and eliminating

burdens on interstate commerce in poultry and

poultry products, the jurisdiction of the Secre-

tary within the scope of this Act shall be

exclusive and poultry and poultry products

shall be exempt from the provisions of the Fed-

eral Food, Drug, and Cosmetic Act, as

amended, to the extent of the application or

the extension thereto of the provisions of this

chapter.

‘This provision and similar comments in the legisla-

five history must be understood, however, in light of

the underlying purposes of the Act, t.e., the establish-

ment of requisite standards for preparing and packag-

ing poultry prior to its shipment in interstate com-

merce*- The Act here in question is closely anal-

ogous, in this respect, to that considered in Florida

Avocado Growers v. Paul, 373 U.S. 132. In that case

the Court held that the Secretary of Agriculture’s

authority to set standards governing the type of avo-

cados that qualified for interstate shipment did not

prevent California from imposing higher standards

for avocados sold at retail in that State in order to

%™ Compare 103 Cong. Rec. 5,237-5,238 (Remarks of Senator

Holland) with 103 Cong. Rec. 15,170 (Remarks of Senator

Humphrey).

22

protect its own citizens. 373 U.S. ‘at 144-145. It

stated that “[c]ongressional regulation of one end’ of

the ‘stream of commerce [here production, | slaughter

and interstate shipment of fowl] does nét, ipso facto,

oust all state regulation at the other end” [here, as in

Florida Avocado, food retailing]. 7”. at 145.

“Our views also find’ confirmation’ in the committee

reports, which state ‘that Section 18(a) was meant

to “provide * © © the same exemption for poultry and

poultry products from the Food, Drug, and Cosmetic

Act as presently applies to rel meats”’™ nnder the

Meat Inspection Act. That. Act, like. the, Poultry

Products . Tnspection Act, requires inapected meat

products to: be wholesome and bear approved labels

before shipment: ‘in ‘interstate commerce. 21 U.S.C.

71-79. However, after the interstate meat shipment

has been: completed; the Food, Drug, and Cosmetic

Act applies.’ United 'States v. Kecmond, 200 F. 2d

370 (C.A. 7), certiorari ‘denied, 845 U.8. 924." Of

course, ones ' the Food, Drug, and Cosmetic Act applies

to the meat, the State where retail sale takes place is

free to require additional label ‘disclosures. See cases

cited, supra, 'p.‘20.° ‘Therefore if Section 18(a) of the

Poultry Produsts Inspection’ Act, 21. U.8.0. 467(a),

gives the Secretary of Agriculture only the same ex-

clusivity of jurisdiction ag he enjoys under the Meat

Tnspection ‘Act, the statute does not preclude the State

—

#8. Rep. No. 195, 88th Cong, 1st Sess., p. 6; H. Rep.

No. 465, 85th Oong., 1st Sess., pp. 6-7.

“This case upheld a conviction under the Faod, Drug, and

Cosmetic Act of a meat packer who removed federal inspection

stamps affixed under the Meat Inspection Act and attempted

to sell horse meat as beef.

23

where the poultry is retailed from requiring more

comprehensive label disclosures. :

4, Finally, nothing in the nature of the subject

matter being regulated—disclosure of net weights on

the labels of poultry for retail sale—requires a. uni-

form national standard. “On the contrary, [this]

+ * * is a subject matter of the kind this Court has

traditionally regarded as properly within the scope

of state superintendence.” ‘Florida Avocado Growers

v, Paul, 373 U.S. 132, 144. Indeed, much poultry is

now disjointed after its arrival at the retail store and

sold in parts. The correct labeling of weights upon

items sold under such conditions seems an inherently

unlikely matter for exclusive federal concern. We ob-

serve nothing in the poultry retailing industry sufficient

to distinguish it from other branches of the retail food

industry. See, ¢.g., Florida Avocado Growers V. Paul,

supra; Cloverleaf Co. v. Patterson, 315 U.S. 148, 162;

Savage v. Jones, 225 U.S. 501; Hebe Co. v. Shaw, 248

U.S. 297; Armour & Co. v. Nerth Dakota, 240 US.

510; Corn Products Refining Vo. V. Eddy, 249 U.S.

497; Pacific States Box & Basket Co. v. White, 296

U.S. 176; cf., Huron Cement Co. v. Detroit, 362 US.

440; Head v. New Mexico Board, 374 U.S. 424.

Moreover, the Poultry Products Inspection Act does

not blanket the entire poultry industry. Intrastate

shipments of poultry, unless made in a specially desig-

nated major consumption area, are not covered. §§ 5,6

of the Act, 21 U.S.C. 454, 455. In addition, certain

types of poultry dealers may be exempted from regu-

lation; § 15 of the Act, 21 U.S.C. 464. Thus, the Act -

2

would, in no event, provide a uniform standard wf

labeling for all poultry products.

In sum, we submit that in enacting the labeling

_provisions of the Poultry Products Inspection Act,

Congress was prescribing standards to be met for the

shipment of the commodity in interstate commerce.

It was not focusing upon the other end of the stream

of commerce—the distribution of poultry products to

the local retail consumer. At least so far as regards

the regulation’ of retail weights and measures, the ab-

sence of a clear statutory prohibition against con-

current State regulation, the complete absence from

the legislative history of any statement in favor of

uniform nationwide label regulation, and the inherent

unsuitability of the subject matter for uniform

national regulation, all lead us to conclude that the

Act did not withdraw the States’ traditional power to

set higher standards for the protection of consumers.

While we have thus concluded that there is no

inherent reason why the Poultry Products Inspection

Act should preclude New York State’s regulation of

retail weights and measures, we recognize the apparent

conflict between the New York requirements and the

federal Act as applied to the labeling of frozen stuffed

turkeys in this case. We therefore turn now to that

more limited question: whether the New York legis-

lation must give way to the particular application of

the federal Act presented in this case.

25

Til.

WHETHER THERE IS 4 CONFLICT BETWEEN FEDERAL

AND NEW YORK LAW TO WHICH’ THE NEW YORK

‘REGULATION “MUST YIELD IS NOT RIPE FOR ‘DEEION

ON THIS RECORD

Because of their tint if frozen: stuffed. bites

are to bear labels detailing their weights both stuffed

and unstuffed,' that information ‘must be ascertained

and affixed at the time the poultry product is pre-

pared and frozen. After the frozen ‘turkey is: re-

eeived at the retail market it is not practical to

thaw it, determine the weight of its components,

and refreeze it.. The Agriculture Department insists,

as it has a right to do, that no inspected poultry

product be shipped in interstate commerce unless it

bears a label approved by the Department. There-

fore, should the Secretary of Agriculture bar the use

of any “dual weight’’ label, plaintiffs would as a prac-

tical matter be unable to comply with New York’s

labeling requirements, and it might well be neces-

sary for the New York law to give way. Florida

Avocado Growers v. P. 373 U.S. 132, 142-143;

McDermott v. Wisconsin, 228 U.S. 115, 137. How-

ever, we agree with the district court that the ques-

tion of conflicting applications of State and federal

law is not ripe for resolution on this record (R.

389-390).

Although the New York definition of “net weight”’

as applied to frozen stuffed turkeys is adequately

demonstrated in the record, it is by no means estab-

lished that the Secretary of Agriculture has made a

conflicting determination as to the requirements im-

posed by similar language in the federal Act. The

Poultry Products Inspection Act itself merely re~

quires that an inspected bird be labeled with its “net

weight or other’ appropriate measure of the con-

tents * * *.” §8(a) of the Act, 21’U.S.C. 457(a).

The Secretary’s ‘regulations, helpful ‘in spelling out

other facets of the Act’s labelling requirements | (see

7 O.F-R: 81.125-81.156); do not spéak! to the prob-

lem in question, #2, whether a dual-weight label is

prohibited (R.:131, 134-135): ’ Appellants’ elaim of

conflict ‘rests only’ upon comments Sige subordinate

Agriculture officials.

~ Swift and Armour, however, had a. statatocy right

ts’ obtain a full administrative hearing, merely by

filing a simple request. - §8(b) of the Act, 21 U.S.C.

457(b). -In that event, a hearing examiner could

have taken evidence from all interested parties (in-

cluding Swift, Armour; the: Department of Agri-

culture’s investigators and the State of New York),

found the facts and promulgated conclusions. 5

U.8.C. 1004, :1006,: 1007... Upon ‘request of any par-

ticipant the’ propriéty of appellants’ dual-weight

_ ‘labels would then have béen reviewed by the Judicial

Officer of the Department of! Agriculture, who is

‘immediately under the Secretary of ‘Agriculture in

authority. : 10: Fed. Reg: 13,769; 11 Fed. Reg. 177A-

233; 18 Fed. Reg. 3219, 3648; 5 U.S.C. 516h.

For reasons ‘sufficient to themselves, however, ap-

pellants chose to let: the matter rest after a brief ex-

change of» correspondence with subordinate Agricul-

ture employees. Appellants’ answer is that they have

“taecepted’’ the low-level administrative determination

27

‘disapproving their use of dual-weight labels. We sub-

- fiit, however, that sound 'prineiples of administrative

law preclude Swift and Armour from asking « federal

court to’ enjoin an otherwise’ valid State law on the

ground of ‘conflict with federal’ administrative regu:

28

present evidence, the Secretary of Agriculture’s top-

level delegate will agree with the conclusion reached

by his subordinate. Indeed, so far as the record dis-

closes, the: Agriculture employee who rejected appel-

lants’ proffered dual-weight labels was not. at that

time aware that New York: required a dual-weight

disclosure (R. 283-284),..In the quasi-judicial hear-

ing which Swift.and Armour coyld so easily have

initiated, the Secretary of Agriculture’s delegate

would undoubtedly have aceorded appropriate weight

to New York’s position. See §18(b) of the Act, 21

U.S.C. 467(b), encouraging cooperation. between the

Seeretary of Agriculture and State agencies, and

§8(a) of the Act, 21 U.S.C. 457(a), permitting the

Secretary of Agriculture to allow reasonable varia-

tions and. grant exemptions from the Act’s labeling

requirements,

| Since Swift and Armtour chose, not to. pursue the

question .of dual. weight. labeling within the Depart-

ment of Agriculture, but instead initiated this action

in: a federal district, court for an injunction against

the State of New York, we are unable to state with

any degree of certainty whether the Department of

Agriculture’s ultimate ruling would have conflicted

with New York law. Accordingly, we believe that

Swift and.Armour, having failed to exhaust the ad-

ministrative avenues open to them, cannot rely on the

ruling of a subordinate Agriculture employee as

creating a sufficient conflict to enjoin the enforcement

of New York’s otherwise valid law.

‘Second, a ruling on the merits in the present pos-

ture of the instant case may well prejudice the legiti-

29

mate interests of the public in the. proper adminis-

tration of the Poultry Products Inspection Act... The

record is confined to the material thought relevant

to the litigating positions of Swift and Armour on one

hand and the State of New York on the other. The

views. of the Department of Agriculture have not been

fully developed. They are represented by a. single

letter and two short comments from subordinate. offi-

cials, together with the testimony of one witness, elic-

ited during examination and cross-examination by

counsel primarily interested in supporting their cli-

ents’ partisan positions, Other grounds which might

justify the denial of dual-weight labels may well. be

,. unexpressed in the record. Requiring the plaintiffs

ts obtain a ruling from the highest available admin-

istrative level before asking for an injunction against

a purportedly conflicting State regulation would in-

sure that rulings of federal administrative agencies

will not be judicially reviewed until the agency has

brought its full resources to bear on the problem and

made a complete record.

‘Finally, the district court’s decision prevents pre-

mature and perhaps wholly unnecessary judicial reso-

lution of serious and difficult questions involving both

technical data and delicate federal-State relationships.

Qn more than one occasion this Court has refused

to short-circuit the administrative process where pri-

vate parties, faced with apparently conflicting de-

mands of State and federal administrative agencies,

prematurely requested judicial relief; See, ¢.g., Fed-

eral Power Commission v. Arkansas Power & Light

Cos 330. U.S. 802, reversing per curiam, 156 F. 2d

30

821 (C.A.D.C.) ; Public Utilities Commission v. United

Atr Lines, 346 U.S. 402; see also Public Service Com-

mission v. Wycoff Co., 344 U.S. 237; Whitney Nati

Bank v. Bank of New Orleans, 379 US. 411.

» The Arkansas’ Power & Light case is particularly

many ‘here. The Arkansas Public Service Com-

mission had ordered the power company to keep its

principal set of books ina certain manner. The staff

of the Federal: Power Commission asserted that the

power company should keep its principal set of books

ina different manner, and the Federal Power Com-

mission issued an order to show cause why the com-

pany should not comply. Instead of attending the

FPO hearing which it was entitled to receive, the

power company immediately brought suit against

both the FPC: and the State Commission and asked

the federal district: court to decide which agency it

should ‘obey: In its responsive pleadings, the FPC

asserted’ its exclusive jurisdiction to regulate the

power company’s bookkeeping, but argued that the

federal courts should not yet enter the controversy

because the FPC had not held hearings and reached

a final conclusion at its: highest administrative level.

This Court, reversing the court of appeals, held, per

curiam, that. the Arkansas Power Company’s com-

plaint should have been dismissed ‘‘on the ground that

[it] has failed to exhaust its administrative remedies.”

330 U.S. 802. Both the appellants in the instant case

and ‘the: plaintiff in Arkansas Power had one para-

mount interest: to avoid subjection to conflicting State

and federal regulations. ' In both cases they attempted

to citcumvent the administrative decisional process by

31

bee ing to court rather than permitting the federal

agency to hold a hearing, take evidence, and exercise

its collective expertise at a high administrative level.

And here, as in that case, they should be relegated to

their administrative remedies first.

“hese cases are bottomed on the basic principle

that when Congress creates an administrative agency

with expertise in a given area, the courts should

not be the first to pass on subjects within the agency’s

ken. Rather, they should refrain until the agency

has. brought its expertise to bear on the particular

problem by “mak[ing] a preliminary, comprehensive

investigation of all’ the facts, analyz[ing] them, and

_ appi[ying] to them the statutory scheme as it is

eonstrued.”’ The courts thus ‘favail themselves of

the aid implicit in the agency’s superiority in gath-

ermg the relevant facts and in marshaling them

into a meaningful pattern.” Federal Maritime

Board v. Isbrandtsen Co., 356 U.S. 461, 498. See

also, e.g., Far East Conference v. United States,

342 U.S. 570, 574-575; Federal Power Commission V.

Metropolitan Edison Co., 304 U.S. 375, 384. :

This Court has’ warned that a court “ustirps the

agency’s function fif it] * * * deprives the Com-

mission of ‘an opportunity to consider the matter,

take its ruling, and ‘state the reasons for its ac-

tion.” Unemployment Compensation Commission v.

Aragon, 329'U.S. 143, 155.* Accordingly, in United

“With regard to an agency’s fact finding authority, Mr.

Justices Holmes, speaking for the Court, has stated that “before

the courts can be called upon, the preliminary sifting process

/

32

States v. Ruzicka, 329 U.S. 287, this Court refused

to permit judicial review of the validity of a pre

liminary determination by the Department. of Agri-

culture; instead the Court postponed all form of

judicial review until. the Secretary of Agriculture

could hold a hearing, make a final determination of -

' Dons and set forth: ‘his reasoning :

_ Even. when ” [questions ag to. the walidite of

the agency’s determinations] are formulated in

constitutional terms, they are questions of law

_ arising out of, or entwined with, factors that

~eall for understanding of the milk industry.

And so Congress has provided that the remedy

in the first instance must be sought from the

Secretary of Agriculture. It is on the basis

of his ruling, and of the elucidation which

he would preswmably give to his ruling, that

resort may be had to the courts. * * * [329

U.S, at 294, emphasis added.]

A ruling on the. merits of the instant case at this

time would frustrate this basic principle. The De

partment of Agriculture has conducted no. hearings,

taken no testimony and initiated no.tests. In short,

it has made no record whatsoever. This can hardly

be said to satisfy the elementary principle that the

provided by the statutes must be gone through with.” _ United

States iv Sing Tuck, 194 US, 161, 170, And regarding the

’s scope in policy matters, the Court has written :

“# ® * where the question is one of specific application of

a broad statutory term in a ‘proceeding in which the agency

administering the statute must determine it initially, the re

viewing court’s function is limited. * * * [The agency’s] deter-

mination *'* * is to be accepted if it has ‘warrant in the record’

atid @ reasonable basis in law.” National Labor Relations Board

v. Hearst Publications, Inc., 322 U.S. 111, 131.

33

courts should not pass on such matters without first

“permit[ting] agency expertise to be brought to bear.”’

Whitney Nat’l. Bank v. Bank of New Orleans, 379

U.S. 411, 420. Indeed, the district court proceedings

in the instant case demonstrate that judicial review

at this stage would be premature. Here, as in

Macauley. v.; Waterman Steamship Corp., 327 US.

540, 545 545, “the administrative process, far from being

qhansted, had hardly begun.’’

We therefore agree with the unanimous decision of

the three-judge district court that Swift and Armour

are not entitled to equitable relief at this time.” We

respectfully submit that the Court should not decide,

on the basis of the pzesent record, whether there is an

- qnavoidable and irreconcilable conflict between federal

and New York law. If the decision of the lower

court is affirmed, Swift and Armour may submit dual-

weight labels to the Department of Agriculture and,

if rejected, request the administrative hearing af-

forded by statute. The State of New York may then

intervene to present its views and evidence. In this

manner the Secretary of Agriculture’s highest dele-

gate will be enabled to collect and marshal the facts

and make the policy judgments entrusted to the Sec-

retary of Agriculture by Congress, subject to judicial

review.*

Whether Swift and Armour would. be entitled to a tem-

porary injunction during the pendency of a hearing before

the Department of Agriculture need not be decided as they

have never requested interim relief.

-“ Of course, it would be appropriate for private partion: such

as Swift and Armour, on the one hand, to inform the.Depart-.

ment of Agriculture officials who are reviewing their requests

CONCLUSION

‘For the reasons stated, we submit that the decision

below should be affirmed on the grounds that: (1) the

New York Regulation is a permissible exercise of thal

State’s police powers and does not unreasonably

burden interstate commerce; (2) the Poultry Prod-

ucts Inspection Act does not preempt State regula-

tion of the labeling of the weights and measures of

poultry offered for retail sale; and (3) on the basis of

the present record and because of plaintiffs’ failure

to obtain a ruling from the highest available admia-

istrative level, the Court cannot now determine

whether New York’s regulation must give way be-

cause of a valid, conflicting application of the federal

Ae

Respectfully submitted.

THuRGOOD MARSHALL,

Solicitor General.

Joun W. Dovatas,

Assistant Attorney General.

Jack S. Levin,

Assistant to the Solicitor General.

SHERMAN L. CoHN,

Ricuarp 8. SaLzMan,

Attorneys.

SEPTEMBER 1965.

of the potential conflict with State law and, on the other hand,

to notify the State of the existence of the Department of Agri-

culture proceeding so that it may intervene. See Appellants’

Brief, pp. 25-26. Whether such an obviously desirable proce-

dure by the private applicant is a necessary prerequisite to af-

firmative use of the administrative ruling as a basis for injunc-

tive relief against a State need not be decided at this time.

APPENDIX

The pertinent provisions of the Poultry Products

Inspection. Act, 71 Stat. 441, as amended, 21 U.S.C.

451 et seq., provide:

LEGISLATIVE FINDING

Sec. 2. [21 U.S.C. 451] Wholesome ultry

products are an important source of the Na-

tion’s total supply of food. Such products are

eonsumed throughout the Nation and substan-

tial quantities thereof move in interstate and

foreign commerce. Unwholesome and adulter-

ated poultry products in the channels of inter-

state or foreign commerce, are injurious to the

public welfare, adversely affect the marketing

of wholesome poultry products, result in sundry

losses to producers, and desti'o markets for

wholesome poul products. e marketing

of wholesome poultry products is affected with

the public interest and crore affects the wel-

fare of the people. All poultry and poultry

roducts which have or are required to have

Gnspeetion under this Act are either in the cur-

' > ‘pent of interstate or foreign commerce or di-

| peetly affect such commerce. That part that

enters directly into the current of interstate

or foreign commerce cannot be effectively in-

spected and regulated without also inspecting

and regulating all poultry and poultry products

processed or handled in the same establishment.

The great volume of poultry products re-

quired as an article of food for the inhabitants

of large centers of population may directly

affect the movement of poultry and poultry

products in interstate commerce. To protect in-

terstate commerce in Itry and poultry prod- .

ucts inspected for wholesomeness, from ing

| (35) ated

36

adversely burdened, obstructed, or affected by

uninspected poultry or poultry products, major

consuming areas where poultry or poultry prod-

apd ee then or decree in oc vo oa

? the movement of inspected po

fe. poultry products in eg vaaer commer

‘should be designated by the Secretary pursuan’

to the provisions of this Act. » ;

DECLARATION OF POLICY

So. 3. [21 U.S.C. 452]. It is declared to be

the policy. of Congress to provide for the in-

spection of poultry and poultry products by the

inspection ‘service as herein provided to pre-

vent the movement in interstate or foreign com-

merce or in a designated major consuming area

of B ecw bp products which are unwholesome,

terate

ad d, or otherwise unfit for human food.

DEFINITIONS

Sec. 4. [21 U.S.C. 453] For purposes of this

Act—

* * + * *

. (n) The term “label” means any written,

printed, or graphic material upon the shipping

container, if any, or upon the immediate con-

tainer, including but not, limited to an indi-

vidual consumer package, of the poultry prod-

uct, or accompanying such product.

* * * *

*

obstruct the movement of inspected poultry

37

the

or poultry products are handled or consumed

in such yolume. as to affect, burden, or obstruct

the movement of inspected’ products in

ecommerce and that the designation of

area will tend to effectuate the purposes of this

Act, he shall by order rag such atea and

prescribe the provisions of this Act’ which

shall be applicable thereto and grant stich ex-

emptions therefrom as he determines practica-

ble. Such designation shal] not become effec-

tive until six months after the notice thereof

is published in the Federal Register. ‘On and

after the effective date of such designation, all

poultry and poultry ‘products processed, sold,

received, or delivered in any such area shall be

subject to the provisions of this Act.

ANTE MORTEM AND POST MORTEM INSPECTION,

| REINSPECTION, AND QUARANTINE

Sgo. 6. [21 U.S.C. 455] (a) For the purpose

of preventing the entry into or flow or move-

ment in commerce or a designated major con-

suming area of any poultry product which is

unwhoiesome or adulterated, the Secretary

shall, where and to. the. extent considered by

him necessary, cause to be made by inspectors

38

products in each efeial eialinhinent. pron

such poultry or po ucts for com-

merce ot i, or for marketing in a designated

mw een try carcasses and parts thereof

paken Dac fo found to be unwholesome

be condemned and shall, if

be taken from such determination of

ation, be destroyed for human food pur-

se eae a an inspector:

That. carcasses, Bare and OG Pe pdnets,

Ld mp may by reprocessing be made not un-

wholesome and not adulterated, need not be so

and destroyed * so reprocessed

under the supervision of .a ins r and

thereafter found to be not unwholesome and

not adulterated. If an appeal be taken —

such determination, the carcasses, parts, o

pais wee be appropriately marked wal

completion of an appeal

| which appeal shall be at the cost of

the peer Pi if the Secretary determines that

the appeal is frivolous. If the determination

of. condemnation. is sustained the carcasses,

parts, and products shall be destroyed for hu-

man food purposes under the supervision of an

or,

* * * *

LABELING

Seo. 8. (21 U.S.C. 457] (a) Each shippin

container of any poultry product inspe

under the authority of this Act and found to be

wholesome and not adulterated, shall at the

time such product leaves the official establish-

ment bear, in distinctly legible form, the official

inspection mark and the approved plant num-

ber of the official establishment in which the

tainer of an aay at poultry try product inspected under

ort

wholesome and af Gaatvaetel shall at the time

39

such product leaves the official establishment

bear, in addition to the official inspecti

in

ang JP , " :

cated staat asp amc ding a

declaration as to artificial flavors, colors, or

preservatives, if any, the’ net weight or other

appr te measure of the contents, the name

and address of the or and the approved

plant number of official establishment in

which the contents pee actrees The name

and address of the distributor may be used in

-lieu‘of the name and address of the processor if

the approved plant number is used to identify

the official establishment in which the poultry

product was prepared and packed. The Sec-

retary may permit reasonable variations and

grant exemptions from the foregoing epeng

requirements in any manner, not in conflict wi

the purposes of this Act. . ;

(b) The use of any written, printed or

graphic matter upon or accompanying any

poultry product inspected. or required to be

inspected pursuant to the provisions vf this

Act or the container thereof which is false or

misleading in any particular is prohibited. No

poultry products inspected or required to be

inspec pee gg to the provisions of this

Act shall sold or offered for sale by any

person, firm, or corporation under any false

or deceptive: name; but established trade name

or names which are usual to. such: products

and which are not false and deceptive and

which shall be approved by the Secretary are

rmitted. If the Secretary has reason to be-

ieve that any label in use or prepared for

use is false or misleading in any particular,

he may direct that the use of the label be

withheld unless it is modified in such manner

as the Secretary may prescribe so that it will

not be false or misleading. If the person using

or proposing to use the label does not accept

. has his. place of business or to the

Dnited. States Oourt of ne pesie ‘for the Dis-

» trit: of Columbia’ Cireuit.. The provisions of

ection 204 of the Packers and Stockyards Act

of 1921, as amended, shall be applicable to

appeals taken under this section.

. PROHIBITED ACTS

Sxo. 9. [21 U.S.C. 458] The following acts

__ or the causing thereof are hereby prohibited:

n,

such mark or identification, used in connec-

‘tion with the inspection ‘of poultry or poultry

products under this Act, or causing, procuring,

aiding, assisting in, or being a party to, su

| false ‘issuing, ‘altering, forging, simu-

lating, or terfeiting, or knowingly possess-

, without promptly ites ies Sire Secretary

of Agriculture or rs a gg tive, uttering,

publishing, or using as true, or causing to be

uttered, ‘published, or uséd as true, any such

falsely made ‘or ‘issued, ‘altered, fered, sim-

“ulated, or counterfeited official inspection cer-

tificate, memorandum, mark, or other identifica-

tion, or device for making such mark or identi-

fication; or representing that’ any ‘poultry or

poultry’ product has been ‘officially inspected

41.

under the authority of this Act when such

poultry or try product has in fact not been

(d) Using in commeree, or in a designated

major area, a false or

cabal eatiane-pehelisey gaeeiete

* * CO ies

COMPLETE COVERAGE OF OFFICIAL ESTABLISHMENTS

Sec. 10. [21 U.S.C. 459] No establishment

processing poultry or poultry products for com-

merce or in or for marketi weer svete

major come area shall process any po

or poultry product exc ih coniptiante wi

the requirements of this Act. :

EXEMPTIONS

Sec. 15. [21 U.S.C, 464] (a) The Secretary

shall, by regulation and under such conditions

as to sanitary standards, practices, and proce-

dures.as he may prescribe, exempt from spe-

cific provisions of this Aet—

(1) poultry producers with respect to poul-

try of their own raising on their. own farms

which they sell directly to household consumers

or restaurants, hotels, and boarding houses for

use in their own dining rooms or in the prepa-

ration of meals for sales direct to consumers

only: Provided, That such poultry producers

do not engage in buying or selling poultry

proguety other than those produced from poul-

ry raised on their own farms; |

(2) retail dealers with respect to poult

products sold directly to consumers in individ-

ual retail stores, if the only processing opera-

tion performed by such retail dealers is the

cutting up of poultry products on the premises

where such sales to consumers are made;

(3) for such period of time as the Seere-

tary determines that it would be impracticable

to provide inspection and the exemption will

42

_ aid in the effective pom tenga of isla Act,

| teak Herson eiiglaeed in the ‘prapescing of youll

or poultry products ve ecommerce and the

siti or poultry products processed

such person: Py vided however, That mo su

exemption shall’ continue ‘in effect on and after

be % ov are atrgy " i ee .

t) persons slaughtering, processing, or

otherwis handling poultry or poultry products

é MeL tae romeninek teligiive Wieeae nen

.. quired by recognized religious dietary laws, to

= Se meee ee as ee nine nee-

. essary to avoid conflict with such requirements

while still effectuating the purposes of this Act.

(b) The Secretary may by order suspend or

terminate any exemption under this section

with “ab to any person whenever he finds

that such action will aid in effectuating the

purposes of this Act. i

GENERAL PROVISIONS

Sec. 18. [21 U.S.C, 467] (a) For the pur-

pose of preventing and eliminating burdens on

commerce in poultry and poultry products, the

jurisdiction of the Secretary within the scope

of this Act shall be exclusive and poultry and

poultry products shall be exempt from the pro-

visions of the Federal Food, Drug, and Cos-

metic Act, as amended, to the extent of the

application or the extension thereto of the pro-

visions of this Act.

(b) In earrying out the provisions of this

Act, the Secretary may cooperate with other

branches of Government and with State agen-

cies and may conduct such examinations, inves-

tigations, and inspections as he determines prac-

ticable through any officer or employee of a

State commissioned by the Secretary for such

"purpose.

New York State Agriculture and Markets Law,

ection 193 (McKinney’s Consolidated Laws of New

York Annotated, Book 2-8, Cumulative Pocket Pt.,

1964), provides:

METHOD OF SALE OF FOOD AND FOOD PRODUCTS

1. Definition of “food” and “food: product”.

The terms ‘‘food’’ and. “food product’’ as used

in this section shall include all material, solid,

liquid or mixed, whether simple or com und,

used or intended for consumption by human

beings or domestic animals normally kept as

household pets and shall also include all sub-

stances or ingredients to be added thereto for

any purpose. : bos

5} “All food and food products which are sold,

offered or exposed for sale by wholesalers,

packers, distributors or jobbers shall be sold or

offered for sale by net weight, numerical count

or standard measure, whichever term shall be

applicable, and shall be plainly marked by such

person or persons offering the food or food

products for sale, in such form or manner as

may be prescribed by the commissioner, except

that it shall not be necessary to so mark meat,

meat products or fish, except shellfish in nat-

ural form, provided the net weight be stated on

a written invoice and on the shipping container

of the meat, meat product or fish.

3 All food and food products offered for sale

at retail and not in containers shall be sold or

offered for sale by net weight, standard meas-

ure or numerical count under such regulations

as may be prescribed by the commissioner.

4. All food and food products which are

packaged or wrapped by the retailer in advance

of being exposed or offered for sale by the re-

tailer shall be accurately marked in such form

or manner as may be prescribed by the commis-

sioner, with (a) the net weight or standard

measure or numerical count; (b) the selling

«<priee per. pound or unit of standard measure,

and (¢) the total selling price.

44

so placed eb hr ot evailable to customers,

>; aces shall not oautabien, to sales of ()

= i fruits, fresh v “grains and

nuts; (b) tlh sent Ehohon an cet #6£0r in vests

wundred : Lepage this chapter; (c)

matt eve of tn apr, (0) ben

dred ninety-two-c o $ as

set forth in section one hun hundred stameinece

of this chapter; (e) frozen desserts as set forth

shigsiel 40) alaalictie Novarerts; tad tq) drug

coholie

pa pharmaceuticals. .