# Amicus Curiae Brief — Swift & Co. v. Wickham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0185%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 111 ## Text 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 «; 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. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0185%3A07. Public record. Not legal advice.