Section 12211 of the California Business and Professions Code
provides that
"the average weight or measure of the packages or containers in
a lot of any . . . commodity sampled shall not be less, at the time
of sale or offer for sale, than the net weight or measure stated
upon the package."
Article 5, § 2930
et seq., of Title 4 of the California
Administrative Code, in implementing § 12211, requires a
statistical sampling process for determining the average net weight
of a lot, which implicitly allows for variations from stated weight
caused by unavoidable deviations in the manufacturing process, but
makes no allowance for loss of weight resulting from moisture loss
during the course of good distribution practice. Petitioner county
Director of Weights and Measures, pursuant to § 12211, ordered
removed from sale bacon packaged by respondent packing company and
flour packaged by respondent millers after he had determined under
Art. 5 that the packages were contained in lots whose average net
weights were less than the net weights stated on the packages.
Respondent packing company's bacon is also subject to inspection
under the Federal Meat Inspection Act (FMIA), as amended by the
Wholesome Meat Act, which requires a meat or a meat product package
to bear a label showing,
inter alia, an accurate statement
of the quantity of the contents in terms of weight, but permits
"reasonable variations"; and implementing regulations permit
"reasonable variations caused by loss or gain of moisture during
the course of good distribution practices or by unavoidable
deviation in good manufacturing practice."
The FMIA prohibits labeling or packaging requirements "different
than" those imposed under that statute. The federal law governing
net weight labeling of respondent millers' flour is contained
in
Page 430 U. S. 520
the Federal Food, Drug, and Cosmetic Act (FDCA) and the Fair
Packaging and Labeling Act (FPLA), which impose the same federal
weight labeling standard for flour as the FMIA imposes for meat.
The FDCA and implementing regulations permit the same kind of
reasonable variations from the packaging requirements as does the
FMIA and its implementing regulations. The FDCA contains no
preemptive language, but the FPLA in 15 U.S.C. § 1461 provides that
the Act supersedes any state laws that are "less stringent than or
require information different from" the requirements of the FPLA or
its implementing regulations. Respondents brought suits in Federal
District Court, seeking declarations that § 12211 and Art. 5 were
preempted by the federal laws and injunctions against enforcement
of those provisions. The District Court granted the requested
relief, and the Court of Appeals affirmed.
Held:
1. With respect to respondent packing company's packaged bacon,
§ 12211 and Art. 5 are preempted by the FMIA. Since California
makes no allowance for loss of weight resulting from moisture loss
during the course of good distribution practice, the state law's
requirement -- that the label accurately state the net weight, with
implicit allowance only for reasonable manufacturing variations --
is "different than" the federal requirement, which permits
manufacturing deviations and variations caused by moisture loss
during good distribution practice. Pp.
430 U. S.
528-532.
2. Although 15 U.S.C. § 1461 does not preempt § 12211 as
implemented by Art. 5, since it appears that the California law is
not "less stringent than," and does not "require information
different from," the FPLA and implementing regulations,
nevertheless, with regard to respondent millers' flour, enforcement
of § 12211, as implemented by Art. 5, would prevent "the
accomplishment and execution of the full purposes and objectives of
Congress,"
Hines v. Davidowitz, 312 U. S.
52,
312 U. S. 67, in
passing the FPLA, an impermissible result under the Constitution,
and hence the state law must yield to the federal. The goal of the
FPLA to facilitate value comparisons among similar products cannot
be accomplished unless packages that bear the same indicated weight
in fact contain the same quantity of the product for which the
consumer is paying. Here, packages of flour that meet the federal
labeling requirements and that have the same stated quantity of
contents can be expected to contain the same amount of flour
solids, since variations from stated weight caused by loss of
moisture are permitted, whereas, as a result of the application of
the California standard, which does not permit such variations,
consumers who attempt to compare the value of identically labeled
packages of flour would not be comparing packages
Page 430 U. S. 521
that contain identical amounts of flour solids, and hence would
be misled. Pp.
430 U. S.
532-543.
530 F.2d 1295 and 530 F.2d 1317, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS,
JJ., joined. REHNQUIST, J., filed an opinion concurring in part and
dissenting in part, in which STEWART, J., joined,
post, p.
430 U. S.
543.
Page 430 U. S. 522
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioner Jones is Director of the Department of Weights and
Measures in Riverside County, Cal. [
Footnote 1] In that capacity, he ordered removed from sale
bacon packaged by respondent Rath Packing Co. and flour packaged by
three millers, respondents General Mills, Inc., Pillsbury Co., and
Seaboard Allied Milling Corp. (hereafter millers). Jones acted
after determining, by means of procedures set forth in 4
Cal.Admin.Code c. 8, Art. 5, that the packages were contained in
lots [
Footnote 2] whose average
net weight was less than the net weight stated on the packages. The
removal orders were authorized by Cal.Bus. & Prof.Code § 12211
(West Supp. 1977). [
Footnote
3]
Page 430 U. S. 523
Rath and the millers responded by filing suits in the District
Court for the Central District of California. [
Footnote 4] They sought both declarations that §
12211 and Art 5 are preempted
Page 430 U. S. 524
by federal laws regulating net weight labeling and injunctions
prohibiting Jones from enforcing those provisions. The District
Court granted the requested relief [
Footnote 5] and, insofar as is relevant here, the Court of
Appeals armed. [
Footnote 6] We
granted Jones' petition for certiorari, 425 U.S. 933 (1976),
[
Footnote 7] and now affirm the
judgment of the Court of Appeals.
I
In its present posture, this litigation contains no claim that
the Constitution alone denies California power to enact
Page 430 U. S. 525
the challenged provisions. [
Footnote 8] We are required to decide only whether the
federal laws which govern respondents' packing operations preclude
California from enforcing § 12211, as implemented by Art. 5.
Our prior decisions have clearly laid out the path we must
follow to answer this question. The first inquiry is whether
Congress, pursuant to its power to regulate commerce, U.S.Const.,
Art. 1, § 8, has prohibited state regulation of the particular
aspects of commerce involved in this case. Where, as here, the
field which Congress is said to have preempted has been
traditionally occupied by the States,
see, e.g.,
U.S.Const., Art. I, § 10;
Patapsco Guano Co. v. North
Carolina, 171 U. S. 345,
171 U. S. 358
(1898),
"we start with the assumption that the historic police powers of
the States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress."
Rice v. Santa Fe Elevator Corp., 331 U.
S. 218,
331 U. S. 230
(1947). This assumption provides assurance that "the federal-state
balance,"
United States v. Bass, 404 U.
S. 336,
404 U. S. 349
(1971), will not be disturbed unintentionally by Congress or
unnecessarily by the courts. But when Congress has "unmistakably .
. . ordained,"
Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U. S. 132,
373 U. S. 142
(1963), that its enactments alone are to regulate a part of
commerce, state laws regulating that aspect of commerce must fall.
This result is compelled whether Congress' command is explicitly
stated in the statute's language or implicitly contained in its
structure and purpose.
City of Burbank v. Lockheed Air
Terminal, Inc., 411 U. S. 624,
411 U. S. 633
(1973);
Rice v. Santa Fe Elevator Corp., supra at
331 U. S.
230.
Congressional enactments that do not exclude all state
legislation in the same field nevertheless override state laws
Page 430 U. S. 526
with which they conflict. U.S.Const., Art. VI. The criterion for
determining whether state and federal laws are so inconsistent that
the state law must give way is firmly established in our decisions.
Our task is
"to determine whether, under the circumstances of this
particular case, [the State's] law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress."
Hines v. Davidowitz, 312 U. S. 52,
312 U. S. 67
(1941).
Accord, De Canas v. Bica, 424 U.
S. 351,
424 U. S. 363
(1976);
Perez v. Campbell, 402 U.
S. 637,
402 U. S. 649
(1971);
Florida Lime & Avocado Growers, Inc. v. Paul,
supra at
373 U. S. 141;
id. at
373 U. S. 165
(WHITE, J., dissenting). This inquiry requires us to consider the
relationship between state and federal laws as they are interpreted
and applied, not merely as they are written.
See De Canas v.
Bica, supra at
424 U. S.
363-365;
Swift & Co. v.
Wickham, 230 F.
Supp. 398, 408 (SDNY 1964),
appeal dismissed,
382 U. S. 111
(1965),
aff'd on further consideration, 364 F.2d 241 (CA2
1966),
cert. denied, 385 U.S. 1036 (1967).
II
Section 12211 of the Cal.Bus. & Prof.Code (West Supp. 1977)
applies to both Rath's bacon and the millers' flour. The standard
it establishes is straightforward:
"[T]he average weight or measure of the packages or containers
in a lot of any . . . commodity sampled shall not be less, at the
time of sale or offer for sale, than the net weight or measure
stated upon the package."
In order to determine whether that standard has been violated,
local officials such as Jones follow the statistical sampling
procedure set forth in Art. 5. [
Footnote 9] That procedure requires the inspector to
identify a lot of identical packages of a commodity and determine
the number of packages in that lot.
Page 430 U. S. 527
He then determines, from tables in the regulation, the number of
packages necessary to provide a suitable sample of the lot, and a
smaller number of packages which is used to determine the average
tare. [
Footnote 10] After
determining that average, the inspector weighs each package in the
sample, subtracts the average tare, and records the difference
between the measured and the stated net weights. These measurements
are used to identify individual packages in the sample which
deviate unreasonably from the stated weight. Those packages are
replaced [
Footnote 11] in
the sample and the replacements weighed.
Page 430 U. S. 528
Finally, the deviations from the stated weight are totaled
algebraically and compared with tables which indicate the magnitude
of the total error necessary to conclude that the lot's average
weight is or is not less than the stated weight. [
Footnote 12]
III
A. Rath's bacon is produced at plants subject to federal
inspection under the Federal Meat Inspection Act (FMIA or Act), as
amended by the Wholesome Meat Act, 81 Stat. 584, 21 U.S.C. § 601
et seq. Among the requirements imposed on federally
inspected plants, and enforced by Department of Agriculture
inspectors, [
Footnote 13]
are standards of accuracy in labeling. On the record before us, we
may assume that Rath's bacon complies with these standards.
[
Footnote 14]
The federal labeling requirement is imposed by § 7(b) of the
FMIA, 81 Stat. 588, 21 U.S.C. § 607(b), which commands:
"All . . . meat and meat food products inspected at any
Page 430 U. S. 529
establishment under the authority of this title . . . shall at
the time they leave the establishment bear . . . the information
required under paragraph (n) of section 1 of this Act."
Section 1(n) of the FMIA, 21 U.S.C. § 601(n), defines the term
"misbranded." As relevant here, it provides that meat or a meat
product is misbranded
"(5) if in a package or other container unless it bears a label
showing . . . (b) an accurate statement of the quantity of the
contents in terms of weight, measure, or numerical count:
Provided, That . . . reasonable variations may be
permitted, and exemptions as to small packages may be established,
by regulations prescribed by the Secretary."
81 Stat. 586. Other sections of the FMIA prohibit dealing in
misbranded products, as defined by § 1 (n). [
Footnote 15]
The Secretary of Agriculture has used his discretionary
authority to permit "reasonable variations" in the accuracy of the
required statement of quantity:
"The statement [of net quantity of contents] as it is shown on a
label shall not be false or misleading and shall express an
accurate statement of the quantity of contents of the container
exclusive of wrappers and packing substances. Reasonable variations
caused by loss or gain of moisture during the course of good
distribution practices or by unavoidable deviations in good
manufacturing practice will be recognized. Variations from stated
quantity of contents shall not be unreasonably large."
9 CFR § 317.2(h)(2) (1976) Thus, the FMIA, as implemented by
statutorily authorized regulations, requires the label of a meat
product accurately to indicate the net weight of the contents
unless the difference
Page 430 U. S. 530
between stated and actual weights is reasonable and results from
the specified causes. [
Footnote
16]
B. Section 408 of the FMIA, 21 U.S.C. § 678, prohibits the
imposition of "[m]arking, labeling, packaging, or ingredient
requirements in addition to, or different than, those made under"
the Act. [
Footnote 17] This
explicit preemption provision
Page 430 U. S. 531
dictates the result in the controversy between Jones and Rath.
California's use of a statistical sampling process to determine the
average net weight of a lot implicitly allows for variations from
stated weight caused by unavoidable deviations in the manufacturing
process. [
Footnote 18] But
California makes no allowance for loss of weight resulting from
moisture loss during the course of good distribution practice.
[
Footnote 19] Thus, the
state
Page 430 U. S. 532
law's requirement that the label accurately state the net
weight, with implicit allowance only for reasonable manufacturing
variations -- is "different than" the federal requirement, which
permits manufacturing deviations and variations caused by moisture
loss during good distribution practice.
Petitioner Jones seeks to avoid this result by arguing that the
FMIA's provisions governing the accuracy of the required net
quantity statements are not "labeling requirements" within the
meaning of § 408. He contends that "labeling" refers only to the
format and placement of information, not to its content. [
Footnote 20] Requirements relating
to accuracy, according to Jones, deal with the problem of
misbranding, and § 408 grants the States concurrent jurisdiction
over that subject.
We agree with the Court of Appeals that this argument is
"strained." 530 F.2d at 1314 n. 25. Nothing in the Act suggests the
restrictive meaning petitioner ascribe to the phrase "labeling
requirements." To the contrary, § 7(b) requires that the product
bear specified information,
see supra at
430 U. S.
528-529, and § 1(p) of the FMIA, 21 U.S.C. § 601(p),
[
Footnote 21] makes clear
that any material bearing that information is part of the product's
labeling. It twists the language beyond the breaking point to say
that a law mandating that labeling contain certain information is
not a "labeling requirement."
We therefore conclude that, with respect to Rath's packaged
bacon, § 12211 and Art. 5 are preempted by federal law.
IV
A. The federal law governing net weight labeling of the millers'
flour is contained in two statutes, the Federal Food, Drug, and
Cosmetic Act (FDCA), 52 Stat. 1040, as amended,
Page 430 U. S. 533
21 U.S.C. § 301
et seq., and the Fair Packaging and
Labeling Act (FPLA), 80 Stat. 1296, as amended, 15 U.S.C. §§
1451-1461. For the reasons stated below, we conclude that the
federal weight labeling standard for flour is the same as that for
meat.
The FDCA prohibits the introduction or delivery for introduction
into interstate commerce of any food [
Footnote 22] that is misbranded. 21 U.S.C. § 331. A food
is misbranded under the FDCA,
"[i]f in package form unless it bears a label containing . . .
an accurate statement of the quantity of the contents in terms of
weight, measure, or numerical count:
Provided, That . .
reasonable variations shall be permitted, and exemptions as to
small packages shall be established, by regulations prescribed by
the Secretary."
§ 343(e) This provision is identical to the parallel provision
in the FMIA,
see supra at
430 U. S. 529,
except that the FDCA mandates, rather than allows, the promulgation
of implementing regulations. [
Footnote 23] The regulation issued in response to this
statutory mandate is also substantially identical to its
counterpart under the FMIA:
"The declaration of net quantity of contents shall express an
accurate statement of the quantity of contents of the package.
Reasonable variations caused by loss or gain of moisture during the
course of good distribution practice or by unavoidable deviations
in good manufacturing practice will be recognized. Variations from
stated quantity of contents shall not be unreasonably large."
21 CFR § 1.8b(q) (1976).
Page 430 U. S. 534
Since flour is a food under the FDCA, its manufacture is also
subject to the provisions of the FPLA.
See 15 U.S.C. §§
1452, 1459(a). That statute states a congressional policy that
"[p]ackages and their labels should enable consumers to obtain
accurate information as to the quantity of the contents, and should
facilitate value comparisons."
§ 1451. To accomplish those goals, insofar as is relevant here,
the FPLA bans the distribution in commerce of any packaged
commodity unless it complies with regulations
"which shall provide that -- "
"
* * * *"
"(2) The net quantity of contents (in terms of weight, measure,
or numerical count) shall be separately and accurately stated in a
uniform location upon the principal display panel of [the required]
label."
§ 1453(a). The FPLA also contains a saving clause which
specifics that nothing in the FPLA "shall be construed to repeal,
invalidate, or supersede" the FDCA. § 1460. Nothing in the FPLA
explicitly permits any variation between stated weight and actual
weight.
The
amici States contend that, since the FPLA does not
allow any variations from stated weight, there is no difference
between federal law governing labeling of flour and California law.
The Court of Appeals, however, held that, because of the saving
clause, compliance with the FDCA, which does allow reasonable
variations, satisfies the requirements of the FPLA. 530 F.2d at
1325.
Amici respond that the Court of Appeals
misinterpreted the FDCA, and that the FDCA establishes a statutory
standard of strict accuracy for net weight labeling. They argue,
therefore, that the saving clause of the FPLA does not alter the
standard mandated by § 1453. Brief for 39 States as
Amici
Curiae 15-21. Alternatively, the States argue that, although
the saving clause means that the FPLA does not supersede the FDCA,
"it
Page 430 U. S. 535
cannot be construed to excuse compliance with FPLA standards
where both FDCA and FPLA requirements are applicable."
Id.
at 28.
The States' argument that the FDCA standard makes no allowance
for reasonable variations is based on this Court's opinion in
United States v. Shreveport Grain & Elevator Co.,
287 U. S. 77
(1932).
Shreveport decided an appeal by the Government in
a criminal case involving shortweighting in violation of the
predecessor of the FDCA, the Food and Drugs Act, 34 Stat. 768, as
amended, c. 117, 37 Stat. 732. The trial court had dismissed the
indictment under that statute, which was essentially identical to
the net weight labeling requirement of the FDCA, [
Footnote 24] on the ground that the
prohibition of unreasonable variations from the marked weight was
too indefinite to state a criminal offense. We reversed, holding
that the statute's substantive standard was created by the
"accurate statement" language which preceded the proviso allowing
reasonable variations, and that the proviso merely granted
administrative authority to promulgate regulations permitting
variations "from the hard and fast rule of the act." 287 U.S. at
287 U. S. 81-82.
Since Congress reenacted the language interpreted by the
Shreveport Court, FDCA, c. 675, § 403(e), 52 Stat. 1047,
amici conclude that the standard under the FDCA is also a
"hard and fast rule."
We need not decide whether the rationale as well as the
Page 430 U. S. 536
result of
Shreveport remains good law. [
Footnote 25] It is clear that 21 CFR §
1.8b(q) (1976), insofar as it is based on the FDCA, has the force
of law, [
Footnote 26] and
allows reasonable variations. Thus, whether the statutory standard
is viewed as strict, with the regulation considered a restriction
on the power to prosecute, or whether the standard is itself viewed
as incorporating the flexibility of the proviso and its
implementing regulation, [
Footnote 27] the result is the same. Under the FDCA,
reasonable variations from the stated net weight do not subject a
miller to prosecution, whether civil or criminal, if the variations
arise from the permitted causes. The question raised by the
arguments of
amici is whether, by enacting the FPLA,
Congress intended to eliminate the area of freedom from prosecution
created by the FDCA and its implementing regulation.
Over 60 years ago, Congress concluded that variations must be
allowed because of the nature of certain foods and the
impossibility of developing completely accurate means of packing.
H.R.Rep. No. 850, 62d Cong., 2d Sess., 2
Page 430 U. S. 537
(1912); S.Rep. No. 1216, 62d Cong., 3d Sess., 3 (1913).
[
Footnote 28] Since 1914,
regulations under the food and drug laws have permitted reasonable
variations from stated net weight resulting from packing deviations
or gain or loss of moisture occurring despite good commercial
practice.
See United States v. Shreveport Grain & Elevator
Co., supra, at
287 U. S. 84. If
Congress had intended to overrule this longstanding administrative
practice, founded on a legislative statement of necessity, we would
expect it to have done so clearly. Instead, it explicitly preserved
existing law, with "no changes." 15 U.S.C. § 1460; S.Rep. No. 1186,
89th Cong., 2d Sess., 20 (1966). The legislative history of the
FPLA contains some indication that the saving clause was understood
to preserve the reasonable variation regulation under the FDCA,
[
Footnote 29] and no
evidence that Congress affirmatively intended to overrule that
regulation. [
Footnote 30] We
can only conclude that, under the FPLA, as under the FDCA, a
manufacturer of food is not
Page 430 U. S. 538
subject to enforcement action for violation of the net weight
labeling requirements if the label accurately states the net
weight, with allowance for the specified reasonable variations.
B. The FDCA contains no preemptive language. The FPLA, on the
other hand, declares that
"it is the express intent of Congress to supersede any and all
laws of the States or political subdivisions thereof insofar as
they may now or hereafter provide for the labeling of the net
qua[nt]ity of contents of the package of any consumer commodity
covered by this chapter which are less stringent than or require
information different from the requirements of section 1453 of this
title or regulations promulgated pursuant thereto."
15 U.S.C. § 1461. [
Footnote
31] The Court of Appeals, although recognizing that this
section leaves more scope for state law than does the FMIA,
concluded that § 12211, as implemented by Art. 5, is preempted
because it is less stringent than the Federal Acts, 530 F.2d at
1324-1327.
The basis for the Court of Appeals' holding is unclear. Its
opinion may be read as based on the conclusion that the state law
is inadequate because its enforcement relies on a statistical
averaging procedure. We have rejected that conclusion.
See
supra at
430 U. S. 531,
and n. 18. Alternatively, the Court of Appeals may have found
California's approach less stringent because the State takes no
enforcement action against lots whose
Page 430 U. S. 539
average net weight exceeds the weight stated on the label, even
if that excess is not a reasonable variation attributable to a
federally allowed cause.
We have some doubt that, by preempting less stringent state
laws, Congress intended to compel the States to expend scarce
enforcement resources to prevent the sale of packages which contain
more than the stated net weight. We do not have to reach that
question, however, because, in this respect, California law
apparently differs not at all from federal law, as applied. The
inspectors responsible for enforcing the net weight labeling
provisions of the Federal Acts are officially informed that
"[f]ield weighing for net weight is primarily to determine the
likelihood of short weight units in the lots." Moreover, they are
not required to submit samples to headquarters "if the average net
is not below the amount declared on the label." Food and Drug
Administration, Inspection Operations Manual 448.1, 448.13 (1976).
These instructions undercut the argument that there is a federal
interest in preventing packages from being overfilled. [
Footnote 32] Since neither
jurisdiction is concerned with overweighting in the administration
of its weights and measures laws, we cannot say that California's
statutory lack of concern for that "problem" [
Footnote 33] makes its laws less stringent than
the federal.
Page 430 U. S. 540
Respondents argue that California's law is preempted because it
requires information different from that required by federal law.
The meaning of the statutory preemption of laws that require
"information different from" the federal net weight labeling
provisions, like the meaning of the phrase "less stringent," is
unclear. Respondents attribute to the ban on requiring different
information a broad meaning, similar in scope to the preemption
provision of the FMIA. They contend that, since California law
requires the label to state the minimum net weight, it requires
"information different from" the federal laws, which demand an
accurate statement with allowance for the specified reasonable
variations. Brief for Respondents 31-32. The legislative history,
however, suggests that the statute expressly preempts as requiring
"different information" only state laws governing net quantity
labeling which impose requirements inconsistent with those imposed
by federal law. [
Footnote
34] Since it would be possible to comply with the state law
without triggering federal enforcement action, we conclude that the
state requirement is not inconsistent with federal law. We
therefore hold that 15 U.S.C. § 1461 does not preempt California's
§ 12211 as implemented by Art. 5.
That holding does not, however, resolve this case, for we still
must determine whether the state law "stands as an obstacle to the
accomplishment and execution of the full
Page 430 U. S. 541
purposes and objectives of Congress."
See supra at
430 U. S. 526.
As Congress clearly stated, a major purpose of the FPLA is to
facilitate value comparisons among similar products. Obviously,
this goal cannot be accomplished unless packages that bear the same
indicated weight in fact contain the same quantity of the product
for which the consumer is paying. The significance of this
requirement for our purposes results from the physical attributes
of flour.
Flour is composed of flour solids and moisture. The average
water content of wheat kernels used to make flour is 12.5% by
weight, with a range from 10% to 14.5%. Efficient milling practice
requires adding water to raise the moisture content to 15% to 16%;
if the wheat is to wet or too dry, milling will be hindered. During
milling, the moisture content is reduced to 13% to 14%. App. 229.
[
Footnote 35]
The moisture content of flour does not remain constant after
milling is completed. If the relative humidity of the atmosphere in
which it is stored is greater than 60%, flour will gain moisture,
and if the humidity is less than 60%, it will lose moisture.
[
Footnote 36] The federal
net weight labeling standard permits variations from stated weight
caused by this gain or loss of moisture.
Packages that meet the federal labeling requirements [
Footnote 37]
Page 430 U. S. 542
and that have the same stated quantity of contents can be
expected to contain the same amount of flour solids. [
Footnote 38] Manufacturers will
produce flour with a moisture content fixed by the requirements of
the milling process. [
Footnote
39] Since manufacturers have reason not to pack significantly
more than is required, and federal law prohibits underpacking, they
will pack the same amount of this similarly composed flour into
packages of any given size. [
Footnote 40] Despite any changes in weight resulting from
changes in moisture content during distribution, the packages will
contain the same amount of flour solids when they reach the
consumer. This identity of contents facilitates consumer value
comparisons.
The State's refusal to permit reasonable weight variations
resulting from loss of moisture during distribution produces a
different effect. [
Footnote
41] In order to be certain of meeting the California standard,
a miller must ensure that loss of moisture during distribution will
not bring the weight of the contents below the stated weight. Local
millers, which serve a limited area, could do so by adjusting their
packing practices to the specific humidity conditions of their
region. For example, a miller in an area where the humidity is
typically higher than
Page 430 U. S. 543
60% would not need to overpack at all. By contrast, a miller
with a national marketing area would not know the destination of
its flour when it was packaged and would therefore have to assume
that the flour would lose weight during distribution. The national
manufacturer, therefore, would have to overpack.
Similarly, manufacturers who distributed only in States that
followed the federal standard would not be concerned with
compensating for possible moisture loss during distribution.
National manufacturers who did not exclude the nonconforming States
from their marketing area, on the other hand, would have to
overpack. Thus, as a result of the application of the California
standard, consumers throughout the country who attempted to compare
the value of identically labeled packages of flour would not be
comparing packages which contained identical amounts of flour
solids. Value comparisons which did not account for this difference
-- and there would be no way for the consumer to make the necessary
calculations -- would be misleading.
We therefore conclude that, with respect to the millers' flour,
enforcement of § 12211, as implemented by Art. 5, would prevent
"the accomplishment and execution of the full purposes and
objectives of Congress" in passing the FPLA. Under the
Constitution, that result is impermissible, and the state law must
yield to the federal.
The judgments are affirmed.
It is so ordered.
* Together with
Jones, Director, Department of Weights and
Measures, Riverside County v. General Mills, Inc., et al.,
also on certiorari to the same court (
see this Court's
Rule 23(5)).
[
Footnote 1]
The title "county director of weights and measures" is a
statutory alternative to the title "county sealer." Cal.Bus. &
Prof.Code § 12006 (West 1964). The office of county sealer is
established and its duties prescribed by §§ 12200-12214 (West 1964
and Supp. 1977).
[
Footnote 2]
"'Lot' means the total number of packages of a single item of
merchandise in a single size at one location and may contain two or
more 'sub-lots.'"
"'One location' shall be construed to mean 'one display' or 'one
grouping,' and does not, for example, mean all items of the same
brand and size stored or kept for sale in one establishment."
4 Cal.Admin.Code § 2931.3 (1970).
[
Footnote 3]
"Each sealer shall, from time to time, weigh or measure
packages, containers or amounts of commodities sold, or in the
process of delivery, in order to determine whether the same contain
the quantity or amount represented and whether they are being sold
in accordance with law."
"The director [of agriculture] is hereby authorized and directed
to adopt and promulgate necessary rules and regulations governing
the procedures to be followed by sealers in connection with the
weighing or measuring of amounts of commodities in individual
packages or containers or lots of such packages or containers,
including the procedures for sampling any such lot, and in
determining whether any package or container or a lot of such
packages or containers complies with the provisions of this
section. . . ."
"Any such rule or regulation, or amendment thereof, shall be
adopted and promulgated by the director in conformity with the
provisions of Chapter 4.5 (commencing with Section 11371), of Part
1 of Division 3 of Title 2 of the Government Code; provided, that
the average weight or measure of the packages or containers in a
lot of any such commodity sampled shall not be less, at the time of
sale or offer for sale, than the net weight or measure stated upon
the package, and provided further, that said rules or regulations
applicable to food, as defined in Section 26450 of the Health and
Safety Code, insofar as possible, shall not require higher
standards and shall not be more restrictive than regulations, if
any, promulgated by the Department of Health, Education, and
Welfare, Food and Drug Administration, under the provisions of the
Federal Food, Drug and Cosmetic Act."
"Any lot or package of any such commodity which conforms to the
provisions of this section shall be deemed to be in conformity with
the provisions of this division relating to stated net weights or
measures."
"Whenever a lot or package of any commodity is found to contain,
through the procedures authorized herein, a less amount than that
represented, the sealer shall in writing order same off sale and
require that an accurate statement of quantity be placed on each
such package or container before same may be released for sale by
the sealer in writing. The sealer may seize as evidence any package
or container which is found to contain a less amount than that
represented."
[
Footnote 4]
Rath filed separate actions against Jones and M. H. Becker,
Director of the County Department of Weights and Measures of Los
Angeles County. The two actions were consolidated for decision in
the District Court after trial of the action against Becker and
argument of cross-motions for summary judgment in the suit against
Jones.
Rath Packing Co. v. Becker, 357 F.
Supp. 529, 531 (CD Cal.1973). The Director of Food and
Agriculture of the State of California intervened as a defendant in
the
Becker proceeding. The millers filed a single action
against Jones.
[
Footnote 5]
The District Court's opinion in Rath's suit is reported as
Rath Packing Co. v. Becker, supra. T he decision in the
millers' action is not separately reported, but is reprinted as an
appendix to the Court of Appeals' opinion.
General Mills, Inc.
v. Jones, 530 F.2d 1317, 1329-1330 (CA9 1975).
Rath's argument that 21 U.S.C. § 607(b) limits
enforcement of the accuracy requirement to the time meat or meat
food products leave the processing plant was rejected by the
District Court, 357 F. Supp. at 532, as were the millers'
contentions that California's inspection laws unreasonably burden
interstate commerce and deny manufacturers due process of law.
See General Mills, Inc. v. Jones, supra at 1322-1323.
[
Footnote 6]
Rath Packing Co. v. Becker, 530 F.2d 1295 (CA9 1975);
General Mills, Inc. v. Jones, supra.
The Court of Appeals reversed the District Court's holding that
the governing federal regulations, 9 CFR § 317.2(h)(2) (1976) and
21 CFR § 1.8b(q) (1976), are void for vagueness.
Rath Packing
Co. v. Becker, supra at 1308-1312;
General Mills, Inc. v.
Jones, supra at 1323-1324. The validity of the regulations is
not at issue here.
[
Footnote 7]
Jones' single petition for certiorari sought review of the
judgments in both
Rath Packing Co. v. Becker, supra, and
General Mills, Inc. v. Jones, supra. See this
Court's Rule 23(5). No action has been taken on the separate
petition for certiorari filed by California's Director of Food and
Agriculture,
see n 4,
supra, and
Becker. Wallace v. Rath Packing
Co., cert. pending, No. 75-1052.
[
Footnote 8]
The Court of Appals affirmed the District Court's holding,
see n 5,
supra, that the California provisions violate neither the
Commerce Clause nor the Fourteenth Amendment. 530 F.2d at
1322-1323. The millers do not challenge these holdings here.
[
Footnote 9]
The District Court concluded that the Art. 5 "procedure is a
statistical determination based upon normal and proven statistical
standards." 357 F. Supp. at 533. The statistical validity of the
procedure has not been challenged.
[
Footnote 10]
"Tare" is the weight of the packing material in which the
product is contained. In order to determine the tare, the inspector
weighs each package and then removes and weighs the contents of
each package. By subtracting the net weight from the gross weight,
he obtains the tare.
After it is packed, bacon loses moisture. Some of that moisture
is absorbed by the insert on which the bacon is placed. A wax board
insert will absorb approximately 5/16 of an ounce from the product,
whereas a polyethylene insert will absorb approximately 1/16 of an
ounce. App. 88-90, 94; 530 F.2d at 1299 n. 2. In addition, moisture
is lost to the atmosphere or, in a hermetically sealed package, by
condensation onto the packing material. App. 61. California's
inspectors include in the weight of the material any moisture or
grease which the bacon has lost to it. Federal inspectors at the
packing plant, by contrast, determine the tare by weighing the
packing material dry. 530 F.2d at 1299. It is not feasible for
field inspectors to use a dry tare method. C. Brickenhamp, S.
Hasko, & M. Natrella, Checking Prepackaged Commodities --
Revision of National Bureau of Standards Handbook 67, p. 33 (July
1975 Draft).
After noting this difference, the Court of Appeals stated: "The
difference in tares employed is not an issue in this case." 530
F.2d at 1299 n. 4. Respondents have, nevertheless, suggested that
the divergence in results produced by the two techniques requires
federal preemption, Brief for Respondents 119, 37; Tr. of Oral Arg.
43-44. We consider the difference significant only insofar as it is
an aspect of the State's failure to allow variations from stated
weight resulting from loss of moisture during good distribution
practice.
See infra at
430 U. S.
531-532.
[
Footnote 11]
"The individual unreasonable errors, both plus and minus, are
excluded from the average, because they are acted upon individually
and because their inclusion could destroy or alter the packaging
pattern. For instance: a sample of ten(10) packages could show nine
(9) packages each with a minus error of 1, and one package with a
plus error of 9. If the large plus error is included, the total
error is 0. Obviously, the pattern of the sample is a minus 1 per
package."
4 Cal.Admin.Code § 2933.3.11 (1961).
Enforcement action is taken against packages with unreasonably
large minus errors. § 2933.3.12(c) (1970).
[
Footnote 12]
If the result of the sampling is not conclusive, additional
samples may be drawn. §§ 2933.3.12(a), (b) (1961).
[
Footnote 13]
Rath's procedures for assuring that its bacon packages contain
the stated net weight have been submitted to the Department of
Agriculture for approval. 530 F.2d at 1298; Brief for Respondents
9. When an approved plan is in effect, the federal inspector
reviews records and observes procedures to assure compliance with
the plan. The inspector is also required to sample one subgroup at
least twice a week and to check the weight of a production lot at
least once a week. U.S. Department of Agriculture, Meat and Poultry
Inspection Manual § 18.61(b)(1)(i) (1973). When no approved plan is
in effect, the inspector samples at least 10 lots each week, unless
production volume is low.
Id. at 18.61(b)(2).
[
Footnote 14]
See 530 F.2d at 1299.
[
Footnote 15]
21 U.S.C. §§ 607(d), 610(b)
[
Footnote 16]
Both sources of variation from stated weight are relevant to
bacon. Bacon loses moisture to its wrapping materials and to the
atmosphere.
See n
10,
supra. The rate of loss to the atmosphere in a typical
retail showcase is 0.3/16 to 0.4/16 of an ounce per day. App. 95.
In addition, since bacon is cut in discrete slices, it is
impossible to guarantee that each package will contain exactly the
stated weight when packed. Instead of seeking exactitude, Rath
approved packages if they were within 5/16 of an ounce of a target
weight. Prior to petitioner's enforcement activities, and the
similar activities of Becker,
see n 4,
supra, Rath's target weight was 3/16 of
an ounce over the stated weight, or 1 lb. 3/16 oz. for a one-pound
package. Thus, a package would be passed if it weighed between 15
14/16 oz. and 1 lb. 8/16 oz. In response to the California
enforcement measures, Rath raised its target weight to 8/16 oz.
over stated net weight for bacon packed on a polyethylene insert,
and 116 oz. over stated weight for bacon packed on wax boards. App.
889.
[
Footnote 17]
Section 408, 81 Stat. 600, states in full:
"Requirements within the scope of this Act with respect to
premises, facilities and operations of any establishment at which
inspection is provided under title I of this Act, which are in
addition to, or different than those made under this Act may not be
imposed by any State or Territory or the District of Columbia,
except that any such jurisdiction may impose recordkeeping and
other requirements within the scope of section 202 of this Act if
consistent therewith, with respect to any such establishment.
Marking, labeling, packaging, or ingredient requirements in
addition to, or different than, those made under this Act may not
be imposed by any State or Territory or the District of Columbia
with respect to articles prepared at any establishment under
inspection in accordance with the requirements under title I of
this Act, but any State or Territory or the District of Columbia
may, consistent with the requirements under this Act, exercise
concurrent jurisdiction with the Secretary over articles required
to be inspected under said title, for the purpose of preventing the
distribution for human food purposes of any such articles which are
adulterated or misbranded and are outside of such an establishment,
or, in the case of imported articles which are not at such an
establishment, after their entry into the United States. This Act
shall not preclude any State or Territory or the District of
Columbia from making requirement or taking other action, consistent
with this Act, with respect to any other matters regulated under
this Act."
[
Footnote 18]
The implicit recognition of manufacturing variations results
from California's use of the statistically estimated average weight
of the lot to determine whether the label accurately indicates the
contents. By averaging the weight of the packages in the sample,
California allows individual deviations around the packer's target
weight to cancel each other out. The average weight of the sample
should equal the target weight,
see n 16,
supra, with allowance for
sampling variation and moisture loss. Article 5 utilizes tables
which recognize sampling variation, but it makes no allowance for
moisture loss.
The Department of Agriculture itself uses statistical sampling
techniques, including reliance on average lot weight to account for
manufacturing deviations.
See Meat and Poultry Inspection
Manual,
supra, n
13, at § 18.61(b)(2); Brief for United States as
Amicus
Curiae 7 n. 4. Indeed, it is difficult to imagine any other
practical technique for policing net weight labeling requirements
in a country where over 200 billion packages are produced every
year.
See Brickenhamp, Hasko, & Natrella,
supra, n 10, at 78.
We have found no indication that Congress intended simultaneously
to grant concurrent jurisdiction to the States to enforce net
weight labeling requirements,
see n 17,
supra, and to deny them the only
practical tool with which to do so. Accordingly, we disagree with
anything in the opinions below that suggests that States may not
use valid statistical sampling techniques, including reliance on
lot average weights, to police compliance with federal and valid
state net weight labeling laws.
[
Footnote 19]
Moisture loss during distribution will, obviously, cause the net
weight of bacon to be less than it was when the bacon left the
packing plant. An averaging procedure, in which deviations above
the average cancel deviations below the average, does not make any
allowance for moisture loss during good distribution practice,
which works in only one direction.
[
Footnote 20]
Brief for Petitioner 40.
See also Brief for 39 States a
Amici Curiae 56-58.
[
Footnote 21]
"The term 'labeling' means all label and other written, printed,
or graphic matter (1) upon any article or any of its containers or
wrappers, or (2) accompanying such article."
§ 1(p), 81 Stat. 587.
[
Footnote 22]
Flour is a food within the coverage of the Act.
See 21
U.S.C. § 321(f).
[
Footnote 23]
The definition of "misbranded" in the FMIA is based on the
definition in the FDCA.
See S.Rep. No. 799, 90th Cong.,
1st Sess., 7 (1967).
[
Footnote 24]
The statute construed in
Shreveport provided that a
food would be considered misbranded --
"If in package form, the quantity of the contents be not plainly
and conspicuously marked on the outside of the package in terms of
weight, measure, or numerical count:
Provided, however,
That reasonable variations shall be permitted, and tolerances and
also exemptions as to small packages shall be established by rules
and regulations made in accordance with the provisions of Section
three of this Act."
287 U.S. at
287 U. S.
81.
[
Footnote 25]
We have subsequently cited
Shreveport as an example of
a case where a criminal statute has been found not impermissibly
vague although it did not provide an unmistakably clear line
between prohibited and permitted conduct.
Jordan v. De
George, 341 U. S. 223,
341 U. S. 231
n. 15 (1951);
Gorin v. United States, 312 U. S.
19,
312 U. S. 27 n.
13 (1941).
[
Footnote 26]
United States v. Mersky, 361 U.
S. 431,
361 U. S.
437-438 (1960);
Atchison, T. & S. F. R. Co. v.
Scarlett, 300 U. S. 471,
300 U. S. 474
(1937).
[
Footnote 27]
This view, although contrary to the Court's analysis in
Shreveport, is strongly supported by the legislative
history of the statutory provision for reasonable variations. As
originally passed, the Food and Drugs Act did not require packages
to bear a statement of net weight, but it did require that any
statement of weight be plain and correct. § 8, 34 Stat. 771. In
1913, Congress changed the law by requiring that labels state the
quantity of contents, and, at the same time, it added the
recognition of reasonable variations. C. 117, 37 Stat. 732. Both
the House and Senate committee reports stated that,
"[u]nder the terms of the bill reasonable variations are
permitted, whether tolerances are or are not established by the
rules and regulations. . . ."
H.R.Rep. No. 850, 62d Cong., 2d Sess., 3 (1912); S.Rep. No.
1216, 62d Cong., 3d Sess., 3 (1913).
[
Footnote 28]
The language of the two committee reports is identical:
"It being apparent to everyone that it is impossible to make
packages of exactly the same size or to pack them with exactly the
same quantity of contents, and it being also apparent that the
exact weight and measure of the contents of a package may undergo
slight changes from natural causes, it is also apparent that
legislation requiring similar packages to contain the same exact
quantity in terms of weight or measure, without allowing for any
variation, would be destructive and prevent the putting of foods in
packages."
H.R.Rep. No. 850,
supra at 2; S.Rep. No. 1216,
supra at 2-3.
[
Footnote 29]
See Hearings on Fair Packaging and Labeling before the
House Committee on Interstate and Foreign Commerce, 89th Cong., 2d
Sess., 208 (1966).
[
Footnote 30]
It is clear from reading the legislative history that Congress
did not intend to alter the FDCA's standard of accuracy when it
passed the FPLA's requirement that a separate and accurate
statement of net quantity appear in a uniform location on package
labels, 15 U.S.C. § 1453(a)(2).
See, e.g., H.R.Rep. No.
2076, 89th Cong., 2d Sess., 20 (1966) (chart indicating that only
change from FDCA effected by provision which became § 1453 is
imposition of location requirement).
[
Footnote 31]
Since we have held that 15 U.S.C. § 1453, read in conjunction
with § 1460 and the FDCA, permits reasonable variations, we
conclude that 21 CFR § 1.8b(q) (1976) properly relies on § 1453 as
authority for its promulgation. Thus, § 1461 preempts state laws
which "are less stringent than or require information different
from" § 1.8b(q). We need not consider respondents' contention,
Brief for Respondents 30, that § 1.8b(q) is authorized by 15 U.S.C.
§ 1454(b), nor need we decide whether § 1461 would affect state
laws less stringent than or different from regulations authorized
by § 1454.
[
Footnote 32]
Overweight packages are apparently also of no concern in the
administration of the FMIA.
See Meat and Poultry
Inspection Manual,
supra, n 13, at 166-174. At oral argument, counsel for
respondents was unable to cite any examples of federal enforcement
action against overweight packages.
See Tr. of Oral Arg.
49-50. To support his argument that federal law forbids
overweighting, counsel relied on the argument made by the United
States as
amicus curiae in this litigation. The
Government's brief in this Court also cites no examples of
enforcement action based on overweighting and, although it refers
generally to the inspection manuals cited here and in text, the
brief makes no mention of the provisions to which we refer.
[
Footnote 33]
The economic self-interest of packers is likely to prevent
avoidable overpacking.
[
Footnote 34]
The language of 15 U.S.C. § 1461 was contained in the House
bill. The Senate bill, by contrast, provided for preemption of
state requirements which "differ from" those in the FPLA. S.Rep.
No. 1186, 89th Cong., 2d Sess., 38 (1966). The language accepted by
the House was adopted by the conference committee, along with the
House committee's explanation that
"preemption would take place to the extent that 'state laws or
State regulations with respect to the labeling of net quantity of
contents of packages impose inconsistent or less stringent
requirements than are imposed under section 4 of this
legislation.'"
H.R.Rep. No. 2286, 89th Cong., 2d Sess., 11 (1966).
[
Footnote 35]
The maximum allowable moisture content for any product labeled
"flour" is 15%. 21 CFR § 15.1 (1976).
[
Footnote 36]
App. 32-35. Weight fluctuations of 3% to 4% resulting from
changes in moisture content are not uncommon during good
distribution practice within the continental United States.
Id. at 32-33. The flour produced by respondent General
Mills and ordered off the market by petitioner weighed, on the
average, between 0.125% and 1.25% less than the stated weights.
Id. at 36.
If flour were packed in airtight packages in order to prevent
weight fluctuations resulting from changes in moisture content, it
would spoil. Tr. of Oral Arg. 39.
[
Footnote 37]
It is undisputed that the packages of flour ordered off the
market by petitioner complied with federal standards when packed.
530 F.2d at 1320; App. 36-37.
[
Footnote 38]
The nutritional value of a quantity of flour is determined by
the amount of flour solids it contains.
Id. at 35.
[
Footnote 39]
Although federal law would allow moisture content to be higher
than that required by the milling process,
see n 35,
supra, flour of the
type involved in this case is not produced with moisture content as
high as the law would permit. App. 30. Since manufacturers would
have an economic incentive to produce flour with as close to the
allowable maximum moisture content as milling technique permits,
one would expect all flour to have virtually the same moisture
content when packed.
[
Footnote 40]
Unavoidable deviations resulting from the packing process will,
of course, cause differences in the contents of individual
packages. On the average, however, one would expect packages of a
given size to contain the same amount.
[
Footnote 41]
Since neither the State nor the Federal Government is concerned
with overweighting, the absence of a state provision parallel to
the federal recognition of weight gain from moisture is of no
consequence.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.
I agree that with respect to Rath's packaged bacon, § 12211 of
the Cal.Bus. & Prof.Code and Art. 5 of 4 Cal.Admin.Code, c. 8,
are preempted by the express preemptive provision of the Federal
Meat Inspection Act, 21 U.S.C. § 678. I also agree that with
respect to General Mills' flour, § 12211
Page 430 U. S. 544
and Art. 5 are not preempted by the express preemptive provision
of the Fair Packaging and Labeling Act (FPLA), 15 U.S.C. § 1461. I
am unable to agree, however, with the implicit preemption the Court
finds with respect to the flour. This latter preemption is founded
in unwarranted speculations that hardly rise to that clear
demonstration of conflict that must exist before the mere existence
of a federal law may be said to preempt state law operating in the
same field.
With respect to labeling requirements for flour under the scheme
contemplated by the FPLA in conjunction with the Federal Food,
Drug, and Cosmetic Act, the Court determines that the state law
labeling requirements are neither "less stringent than" nor
inconsistent with those federal requirements. This conclusion quite
properly dictates the Court's holding that Congress has not
expressly prohibited state regulation in this field. The remaining
inquiry, then, is whether the two statutory schemes are in utter
conflict. [
Footnote 2/1] As this
Court noted in
Kelly v. Washington, 302 U. S.
1,
302 U. S. 10
(1937):
"The principle is thoroughly established that the exercise by
the State of its police power, which would be valid if not
superseded by federal action, is superseded only where the
repugnance or conflict is so 'direct and positive' that the two
acts cannot 'be reconciled or consistently stand together.'"
See also Cloverleaf Butter Co. v. Patterson,
315 U. S. 148,
315 U. S. 156
(1942);
Askew v. American Waterways Operators, Inc.,
411 U. S. 325,
411 U. S. 337,
411 U. S. 341
(1973). When we deal, as we do here, with congressional action "in
a field which the States have traditionally occupied," the basic
assumption from which preemption
Page 430 U. S. 545
must be viewed is
"that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and
manifest purpose of Congress."
Rice v. Santa Fe Elevator Corp., 331 U.
S. 218,
331 U. S. 230
(1947);
cf. De Canas v. Bica, 424 U.
S. 351,
424 U. S. 356
(1976). I am simply unable to find that this stringent standard has
been met in this case.
The Court's opinion demonstrates that it is physically possible
to comply with the state law requirement "without triggering
federal enforcement action,"
ante at
430 U. S. 540.
This leads the Court to conclude that the "state requirement is not
inconsistent with federal law."
Ibid. It also must lead to
the conclusion that this is not a case "where compliance with both
federal and state regulations is a physical impossibility for one
engaged in interstate commerce."
Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132,
373 U. S.
142-143 (1963). Preemption, then, if it is to exist at
all in this case, must exist because the operation of the state Act
inexorably conflicts with the purposes underlying the Federal Act.
The Court relies on the fact that one of the purposes of the FPLA
is to "facilitate value comparisons" among consumers, 15 U.S.C. §
1451. But merely identifying a purpose is not enough; it must also
be shown that the state law inevitably frustrates that purpose. As
we but recently noted:
"We must also be careful to distinguish those situations in
which the concurrent exercise of a power by the Federal Government
and the States or by the States alone
may possibly lead to
conflicts and those situations where conflicts
will
necessarily arise."
"It is not . . . a mere possibility of inconvenience in the
exercise of powers, but an immediate constitutional repugnancy that
can by implication alienate and extinguish a preexisting right of
[state] sovereignty."
"The Federalist No. 32, p. 243 (B. Wright ed.1961)."
Goldstein v. California, 412 U.
S. 546,
412 U. S.
554-555 (1973) (emphasis in original).
Page 430 U. S. 546
Under the proper test, it is only
"[i]f the purpose of the act cannot otherwise be accomplished --
if its operation within its chosen field else must be frustrated
and its provisions be refused their natural effect -- the state law
must yield to the regulation of Congress within the sphere of its
delegated power."
Savage v. Jones, 225 U. S. 501,
225 U. S. 533
(1912).
The Court's reliance on supposition and inference fails in two
respects to demonstrate that respondents have carried their burden
of demonstrating preemption. First, on the Court's own premises,
there should be no finding of preemption. We are told,
ante at
430 U. S. 526,
that the relevant inquiry is "the relationship between state and
federal laws as they are interpreted and applied, not merely as
they are written," while we are further told,
ante at
430 U. S. 539,
that there is, in fact, no "federal interest in preventing packages
from being overfilled," since the Federal Government is not
"concerned with overweighting in the administration of its weights
and measures laws. . . ." Under these premises, it is hard to
accept the Court's conclusion that, because of the federal purpose
to facilitate consumer value comparisons, [
Footnote 2/2] the state law is preempted because some
packages might contain more than the minimum weight stated and more
than another company's similarly marked package. For we have been
told that, should a manufacturer deliberately overpack, for
whatever reason, [
Footnote 2/3]
there will be no federal action taken against him even though value
comparisons might then "be misleading." It is virtually impossible
to say, as the Court does, that "neither the State nor the Federal
Government is concerned with overweighting,"
Page 430 U. S. 547
ante at
430 U. S. 542
n. 41, and yet conclude that state-induced overweighting conflicts
with a "value comparison" purpose, while, presumably, other
overweighting does not. In viewing such a purpose to be sufficient
to require preemption while the very purpose is ignored in practice
by the administering federal agency reverses the normal presumption
against finding preemption. The reasoning process which leads the
Court to conclude that there is no express preemption,
ante at
430 U. S. 540,
leads me to conclude that there is no implied preemption. [
Footnote 2/4]
Second, and as troubling as the legal inconsistency, is the
Court's reliance on unproved factual speculation in demonstrating
the purported irreconcilable undermining of the federal purpose by
the state statutory scheme. The premises the opinion must rely on
are many. It acknowledges that flour packed under different
humidity conditions would nonetheless comply with the federal
standard, even though, as a result, similarly marked packages might
contain different quantities of flour "solids,"
ante at
430 U. S. 542,
and n. 39, but relies on the economics of the milling process to
conclude that packers "will pack the same amount of [flour solids]
into packages of any given size." This may normally be true as an
economic fact, but it is not supported by the record, and, as a
Court, we have no way of knowing it from other sources.
Similarly defective is the reasoning process by which the
majority concludes that local millers could adjust their packaging
practices to specific humidity conditions, while national millers
could not, since the national millers
"would not know the destination of [their] flour when it was
packaged, and would therefore have to assume that the flour would
lose weight during distribution."
Ante at
430 U. S. 543.
This assumption,
Page 430 U. S. 548
too, is unsupported by the record. [
Footnote 2/5] We simply have no basis for concluding
that national distributors do not know, or could not know through
the exertion of some modicum of effort, where their flour will end
up. The possibility that a packer might have to incur some extra
expense in meeting both systems simply does not mean that the
"purposes of the act cannot otherwise be accomplished,"
Savage
v. Jones, 225 U.S. at
225 U. S. 533, nor does it demonstrate that "the two
acts cannot
be reconciled . . . ,'" Kelly v.
Washington, 302 U.S. at 302 U. S. 10.
[Footnote 2/6]
Page 430 U. S. 549
The assumptions in the Court's opinion not only are insufficient
to compel a finding of implied preemption, they suggest an approach
to the question of preemption wholly at odds with that enunciated
in
Florida Lime & Avocado Growers, Inc. v. Paul,
373 U. S. 132
(1963). There, this Court was concerned with differing federal and
state maturity standards for avocados grown in Florida. This Court
rejected a test which looked to the similarity of purposes,
id. at
373 U. S. 142,
and noted instead that a manufacturer could have complied with both
statutes by modifying procedures somewhat,
id. at
373 U. S. 143,
which demonstrated that there was "no inevitable collision between
the two schemes of regulation, despite the dissimilarity of the
standards,"
ibid. Nothing has been shown to demonstrate
that this conclusion is not equally justified in the instant
case.
The Court today demonstrates only that there could be not that
there must be -- a conflict between state and federal laws.
[
Footnote 2/7] Because reliance on
this test to find preemption, absent an explicit preemptive clause,
seriously misapprehends the carefully delimited nature of the
doctrine of preemption,
Goldstein v. California, 412 U.S.
at
412 U. S. 554,
I dissent from the holding that § 12211 and Art. 5 are preempted
with respect to General Mills' flour.
[
Footnote 2/1]
There is no contention that the subject of the regulation is in
its "nature national, or admit[ting] only of one uniform system. .
. ."
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 319
(1852). On the contrary, "the supervision of the readying of
foodstuffs for market has always been deemed a matter of peculiarly
local concern."
Florida Avocado Growers v. Paul,
373 U. S. 132,
373 U.S. 144 (1963).
[
Footnote 2/2]
This purpose is not the only purpose underlying the Federal Act.
Title 15 U.S.C. § 1451 also announces the congressional policy of
labeling packages so as to "enable consumers to obtain accurate
information as to the quantity of the contents. . . ."
[
Footnote 2/3]
Including, one would have supposed, state compulsion.
[
Footnote 2/4]
The majority nowhere explains why its conclusion that the "state
requirement is not inconsistent with federal law,"
ante at
430 U. S. 540,
does not reflect on the fact that the state statutory scheme does
not inevitably conflict with the federal.
[
Footnote 2/5]
The Court's reliance on the possible differential effect of
California's requirements on local and national millers is itself
wholly speculative. To begin with, we do not know from the record
that there are both "local" and "national" millers, however
defined. Even if both exist, we simply do not know that local
millers will ship flour only to ares with comparable humidity
levels. Any miller might experience a variety of humidity
conditions by shipping to two different areas, despite the fact
that his operation may be considered local in that the two areas
are relatively contiguous. Even in the same town, stores that are
air-conditioned may have significantly different humidity
conditions than exist elsewhere in the town. In such situations,
the local millers would have to adjust their packing process to
account for this differential, either by packing different
quantities into different packages, and then tracing their
distribution, or by overpacking all packages sufficiently to ensure
that any possible humidity conditions could be met. The same would
appear to be true for national millers. We simply, then, do not
know that local millers and national millers would not be similarly
affected. The Court's assertions to the contrary are nothing but
speculations.
[
Footnote 2/6]
For all that appears, packers could easily adjust their
processes so as to insure compliance with the purposes of both
Acts. Even if such adjustment should entail a minor economic
inconvenience, it has nowhere been demonstrated that the imposition
of a moderate economic burden conflicts with the purpose of the
federal statutory scheme. California, in the exercise of its police
powers, may be deemed to have believed that the benefits of its
enactment outweigh these costs. Unless it call be shown that
additional cost itself conflicts with a clear congressional
purpose, the presumption is that our federal system of government
tolerates such costs. And if added costs will vitiate the conflict,
I do not see how it can be said that the statutory schemes
necessarily conflict, rather than just "may possibly" conflict.
Goldstein v. California, 412 U. S. 546,
412 U. S. 554
(1973).
[
Footnote 2/7]
On its face, there is nothing inexorable about a conflict
between a statute which, in effect, imposes a minimum weight
requirement, and one whose purpose is to "enable consumers to
obtain accurate information as to the quantity of the contents and
[to] facilitate value comparisons." 15 U.S.C. § 1451.