FRIENDLY, Circuit Judge.
Swift & Co. and Armour & Co. pack frozen stuffed turkeys in Minnesota and Wisconsin. They ship the turkeys into New York for sale to retailers who resell them to consumers. The turkeys are labelled so as to show the total weight of the stuffed bird, as required by the United States Department of Agriculture. The packers have brought this action against the Commissioner of Agriculture and Markets of New York seeking a declaration of their right to sell turkeys in New York under the federally approved label and an injunction against the New York Commissioner's interfering with such sales by enforcing § 193 of New York's Agriculture and Markets Law, McKinney's Consol.Laws, c. 69 and regulations issued thereunder which he construes as requiring a statement
The complaint alleged that § 193 of the Agriculture and Markets Law and action threatened by the Commissioner under it violated the plaintiffs' rights under the commerce and supremacy clauses of the Federal Constitution and the due process and equal protection clauses of the Fourteenth Amendment. Plaintiffs requested that a three-judge court be called to hear and determine the case pursuant to 28 U.S.C. § 2281. Believing that the case might be within that section, Judge Croake, to whom the application came, caused such a court to be assembled as provided in 28 U.S.C. § 2284. For reasons that will later appear, we think it best to take what might seem the unorthodox course of discussing the merits before we address ourselves to the puzzling question, which the parties have not disputed, whether the case is appropriate for a three-judge court under § 2281.
Section 193, subd. 3 of New York's Agriculture and Markets Law provides:
When the action was brought, the relevant regulation, § 221.40, stated:
Neither the statute nor the regulation defines "net weight". The Director of the Bureau of Weights and Measures of the Department testified that he interpreted the regulation, as applied to stuffed turkeys, to require statement of the net weight both of the unstuffed and of the stuffed bird, and that, when asked, he so advised local sealers of weights and measures.
The history of the regulation, promulgated after a hearing by the Commissioner to consider an alternative containing an exception "that stuffed poultry, when plainly labeled as such and with the words `including stuffing' appearing as part of the net weight marking of the combined poultry and stuffing may be sold or offered for sale by the net weight of the combined poultry and stuffing", leaves little doubt that this was an admissible interpretation of the regulation. We are also confident that, in view of the lack of statutory definition of "net weight", the New York courts would hold a regulation having this effect to be within the authority conferred on the Commissioner specifically by § 193, subd. 3 and more generally by § 196-a. See Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104, 60 N.E.2d 825 (1945). We further hold that the state has taken and has threatened to take action that will prevent the sale of plaintiffs' turkeys unless they comply with the regulation as so interpreted, overruling the state's unpersuasive contention that plaintiffs have been the victims of uncoordinated but uniform acts by a number of local sealers.
Plaintiffs now weigh the turkeys at their packing plants outside New York after stuffing and immediately before freezing. They do not deny they can adjust their operation so as to comply with the New York regulation as interpreted by the Commissioner, although this would allegedly involve a total of three weighings — one before stuffing, one
The contention that New York's regulation is rendered invalid by the commerce clause alone is not substantial. The Commissioner showed that the stuffing constitutes a considerable portion of the net weight of the stuffed bird and also that there can be significant variations in the weight of stuffing in birds of the same size, even when the processing is done by such reputable packers as the plaintiffs and a fortiori when it is not. Hence a label showing only the net weight of the stuffed bird may not fully inform the buyer what he is getting. Protection of the public against false weights and measures or misleading statements about them is one of the oldest exercises of governmental regulatory power. "The control of weights and measures appears in the Anglo-Saxon laws, and in legislation during the next thousand years." Plucknett, A Concise History of the Common Law (1956), 448 fn. 2. The barons of the 13th century considered the subject sufficiently important for mention in the 35th Chapter of Magna Carta.
That the framers of the Constitution did not intend that laws of such ancient vintage in New York and other states
In contrast to the lack of merit in plaintiffs' contentions that New York's requirements violate these constitutional provisions, their argument that the Supremacy Clause forbids enforcement of New York's regulation because of the federal Poultry Products Inspection Act of 1957, 21 U.S.C. §§ 451-469, 71 Stat. 441-49, raises most serious issues, to which we now turn.
The Act contains an initial section, 21 U.S.C. § 451, making legislative findings as to the national interest in favor of wholesome poultry products and against unwholesome or adulterated ones, as to the impracticability of inspecting poultry and poultry products that enter into the stream of interstate commerce without also inspecting all poultry and poultry products processed in the same establishment, and as to the importance of protecting "interstate commerce in poultry and poultry products inspected for wholesomeness, from being adversely burdened, obstructed, or affected by uninspected poultry or poultry products" in large metropolitan markets. The second section, 21 U.S.C. § 452, declares 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 of poultry products which are unwholesome, adulterated, or otherwise unfit for human food." The following sections, 21 U.S.C. §§ 453-456, contain definitions, authorize the designation of major consuming areas within which federal controls will govern local as well as interstate commerce in poultry, and provide for inspection of carcasses and of the premises themselves.
The next two sections, 21 U.S.C. §§ 457 and 458, contain the provisions on which plaintiffs particularly rely. Section 457, entitled "Labeling" provides:
Section 458 prohibits various acts, including:
Pursuant to 21 U.S.C. § 463, the Secretary of Agriculture has issued regulations to carry out the Poultry Inspection Act, the most pertinent of which we quote in the margin.
It is undisputed that the Administrator has approved labels for plaintiffs' frozen stuffed turkeys which show only the net weight of the stuffed bird. In May, 1963, Swift sought approval of a "revised net
We must first consider whether by the mere enactment of the Poultry Inspection Act, Congress so "occupied the field" as to oust all weight regulation by states into which federally inspected poultry or poultry products are shipped, irrespective of the consistency of the state and the federal regulation. Some illumination is afforded by a series of cases that arose shortly after enactment of the Pure Food and Drug Act. The first, Savage v. Jones, supra, held that the provisions of § 8 prohibiting a package or label that contained false or misleading statements of the contents, 34 Stat. 768, 770 (1906), did not invalidate a state statute requiring a tag or label affirmatively disclosing the ingredients. In contrast, at the next term, the Court decided that when the Secretaries of the
Multiplication of references to Supreme Court decisions in this general area would serve no useful purpose; it suffices for the present to cite the last bracketing pair, both decided by the narrowest of margins. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), sustained California's prohibition of the sale of avocados containing less than 8% of oil by weight, as applied to Florida avocados whose maturity on picking was already controlled by compliance with regulations promulgated by the Secretary of Agriculture with special reference to Florida avocados, and which were certified by a Federal-State Inspection Service pursuant to regulations issued by the Secretary under the Agricultural Adjustment Act, 7 U.S.C. §§ 601 et seq., 48 Stat. 31 (1933). The Court reaffirmed that "The principle to be derived from our decisions is that federal 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 the Congress has unmistakably so ordained." 373 U.S. at 142, 83 S.Ct. at 1217. As against this Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754 (1942), had prohibited Alabama from seizing packing stock butter, not meeting the state standard, which had been acquired by an Alabama processor for use in manufacturing renovated butter for transportation in interstate commerce under federal regulations, Internal Revenue Code of 1939, §§ 2320-27, 53 Stat. 252. The Florida Avocado Growers majority distinguished Cloverleaf on the basis that "Congressional regulation of one end of the stream of commerce does not, ipso facto, oust all state regulation at the other end," 373 U.S. at 145, 83 S.Ct. at 1218, and pointed to the difference recognized in Cloverleaf "between a confiscation which interferes with production under federal supervision and confiscation after production because of a higher standard demanded by a state for its consumers. The latter type is permissible under all the authorities." 315 U.S. at 162, 62 S.Ct. at 499.
The general scheme of the Poultry Products Inspection Act does not suggest a Congressional purpose to create an exclusive system of regulation of the marketing of poultry; in particular it does not suggest an intent to oust the states of their historic undertaking to safeguard their people from improper statements of weight. The legislative findings, 21 U.S.C. § 451, and the declaration of policy, 21 U.S.C. § 452, speaking of the need for protection against unwholesome poultry products and of the importance of providing for inspection "to prevent the movement in * * * commerce * * * of poultry products which are unwholesome, adulterated, or otherwise unfit * * *", do not carry the implication
Insofar as plaintiffs contend that the extra weighings needed to meet New York's requirement frustrate the primary Congressional purpose by impairing the wholesomeness of the product, we reject the claim as wholly contrary to the evidence. The weighings would add something like half a minute to the 45 minutes in which the birds are now exposed between their bath in ice slush and their entry into the freezer; Armour's plant superintendent admitted, with commendable candor, that the small additional time and handling would have no adverse effect.
For reasons already indicated in part, we likewise cannot conclude that a state requirement of a more detailed declaration of weights was ruled out by mere enactment of the federal statute. Although the Secretary of Agriculture may have reasonable leeway to determine what net weight shall be shown on the official federal label and the label provisions of the Act recognize the necessity of protecting the integrity of the "official inspection mark" (21 U.S.C. § 453(j)) and contain a normal prohibition of "false and misleading labeling", there is no basis for assuming that any further statement as to weight that a state may require would necessarily affect the integrity of the official inspection mark or be "false or misleading". To borrow from Mr. Justice Brennan's opinion in the Florida Avocado Growers' case, the manner of stating the weight of frozen stuffed turkeys in various markets "seems to be an inherently unlikely candidate for exclusive federal regulation," 373 U.S. at 143, 83 S.Ct. at 1218. There is here a complete absence of the "special and peculiar history" that led the Court to conclude in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 232, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), that a more pervasive but non-conflicting state regulation must yield to the amended federal Warehouse Act, 46 Stat. 1463 (1931). There is a marked contrast with the importance attached in Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961), to the expressed intention to establish uniform standards in the Tobacco Inspection Act, 49 Stat. 731 (1935). And the problem is in no wise comparable with that in Napier v. Atlantic Coast Line R. R., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926), where the decision as to the exclusivity of the Boiler Inspection Act must have been influenced
We must thus examine not only the precise language of the Poultry Products Inspection Act but also the regulations issued and actions taken thereunder to determine whether an irreconcilable conflict has arisen between what the United States has commanded and what New York requires. Cloverleaf Butter Co. v. Patterson, supra, 315 U.S. at 155-156, 62 S.Ct. 491; Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 146, 83 S.Ct. 1210.
We begin by observing that, as we understand New York's position, it does not demand any modification in the weight label adjacent to the Department of Agriculture's official inspection stamp; we shall assume New York would be satisfied, as indeed it must be, so long as somewhere on the container there is a statement of the net weight of the bird before stuffing, on which, if need be, any federal responsibility could be expressly disclaimed. Such a presentation should go a long way toward satisfying the concern expressed in the letter of the Head of the Poultry Products Section of the Department of Agriculture lest an inaccurate statement should occur when an occasional bird, weighed before stuffing, loses its tag in the process — although we would indeed suppose that a technology that has been able to develop computers, space satellites, and supersonic airplanes could find means to conquer this problem.
The question thus becomes whether the United States has prohibited plaintiffs from affixing an additional label that will meet New York's requirements. Reading the statute in the manner prescribed in cases of this sort, we find no "unambiguous congressional mandate to that effect." 373 U.S. at 147, 83 S.Ct. at 1219. Although we assume that the Secretary of Agriculture or his delegate, the Administrator of the Agricultural Marketing Service, is empowered to construe the required statement of "net weight", § 457(a), as referring to the net weight of the stuffed bird, this alone would not outlaw further statements concerning weight so long as these do not obscure or detract from the force of the federally approved label, and so long as they are not presented so as to imply federal approval. Indeed, this view is supported by regulation 81.127, footnote 5 supra, which, although confusingly worded, shows concern only for labels which bear official identification. Consistent with this, we read the communications from the Department as merely rejecting the particular labels submitted for approval and not as attempting to rule broadly that any supplementary labelling of weight in addition to that satisfying the Department would be unlawful.
Neither can we sustain Swift and Armour on the basis that the communications are a finding that a supplementary label satisfying the demands of the New York Commissioner would inevitably
We now reach the question, postponed at the outset, whether this is a case seeking an "injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute * * * upon the ground of the unconstitutionality of such statute," 28 U.S. C. § 2281, as to which alone a court of three judges is required. Before March 26, 1962, when the Supreme Court decided Kesler v. Department of Public Safety of Utah, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641, the question would have been speedily answered in the negative. Since the claims that application of the New York statute violates the commerce clause or the Fourteenth Amendment are insubstantial, the serious questions that remain are of federal statutory preemption and of conflict between federal and state enactments; these had not been considered to be claims of "unconstitutionality" within § 2281, even though an elegant statement of the argument would end with a reference to the supremacy clause of Article VI of the Constitution. See Kesler v. Department of Public Safety of Utah, supra, 369 U.S. at 175-176, 82 S.Ct. 807 and fn. 5 (dissenting opinion of the Chief Justice) (1962); Wright, Federal Courts 164 (1963). But, in Professor Wright's language, the Kesler decision qualified "the cases which seemed to so hold with a very subtle rule", namely, that § 2281 was applicable when "no question of statutory construction, either of a state or a federal enactment, is in controversy" so that the case "presents a sole, immediate constitutional question", as distinguished from cases "which presented issues of statutory construction even though perhaps eventually leading to a constitutional question," 369 U.S. at 157-158, 82 S.Ct. at 811.
When we reflect on what we have written, we think we have indeed construed the Poultry Products Inspection Act, both to determine whether it was meant to oust all state regulation of weights ex proprio vigore and to decide whether it bans the statement as to weight on which New York insists. If a problem of statutory construction exists
The complaint is dismissed.
7 CFR § 81.127:
7 CFR § 81.130: