JONES v. RATH PACKING CO.

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Argument of Loyal E. Keir

Chief Justice Warren E. Burger: We’ll hear arguments next in Jones against Rath Packing Company.

Mr. Keir, I think you may proceed whenever you’re ready.

Mr. Loyal E. Keir: Mr. Chief Justice and may it please the Court.

Before I begin my discussion of the petition’s contentions, I would like to invite the Court’s attention to an error that appears in petitioners reply brief and I invite the Court’s attention particularly to page 8 of the reply brief where we have quoted a portion of handbook 67 and I’m looking down towards the bottom of page which starts with the words, “It is admitted that such indefinites and so forth.”

Actually, that quotation ends in the middle of the sentence and we think this was a publishers or printing error and the full quotation actually appears in the appendix to the amicus curiae brief of 33 States that was filed in support of the petition.

I’m referring to the amicus curiae brief that is the first one filed by the several states.

There was a later one filed concurrently with the petitioner’s opening brief and at page --

Justice Harry A. Blackmun: Mr. Keir, why don’t you do this by letter?

Mr. Loyal E. Keir: I beg your pardon sir.

Justice Harry A. Blackmun: Why don’t you tell us this information by letter?

Mr. Loyal E. Keir: I was going to suggest Your Honor that I would right a letter to the clerk and set forth the complete quotation so that we can correct the record if that is okay.

This is a case which comes to the Court on a writ of certiorari right to the Court of Appeals for the Ninth Circuit.

It involves the enforcement of a California Statute and California regulations pertaining to the weights and measures of packaged commodities.

Actually, we have two separate but related cases here, namely the Rath Packing Company case which involves packaged bacon and the General Mills case which involves packaged wheat flower.

Although, there were a number of issues that were decided by the lower courts the principle holding of both United States District Court and the Court of Appeals for the Ninth Circuit is that the California Statute and its interpreter regulation are preempted by federal law, more specifically, the Federal Wholesome Meat Act of 1967 in the Rath Packing Company case and the Federal Food, Drug, and Cosmetic Act and the Federal Fair Packaging and Labeling Act in the General Mills case.

The issue of preemption is the only issue that petitioner has raised in the petition to this Court.

In discussing the inspection process that is followed by petitioner and other enforcement officers in California, I should first define a term that will be used during the course of the oral argument.

This is the term “Lot.”

A lot maybe defined as a group of apparently identical packages found at the same place and at the same time.

For example, 500 packages of Wheat flower found in a -- on a shelves of a Safeway Store on a certain date, each package stating that it contains 10 pounds net weight.

Now, this is a lot.

The inspection process that is followed by the inspection officers in California does not involve inspection of each package in a lot.

Obviously, that would be too expensive and too time consuming.

Instead, under the California System in Article 5 is how we ordinarily refer to the California Regulation, provides for lot averaging and this is done through random sampling.

For example, in the example that I gave in the lot of 500 packages, the inspection officer would select 25 samples and he would take them from various parts of this lot so that he would get a group of representative samples of the lot.

These are taken at random.

These packages are weighed and the net weight of the average is determined.

If that net weight is equal to or more than the labeled weight, then the entire lot is approved.

If the lot average net weight is less than the labeled weight, then the entire lot is ordered off sale.

Now, this system that’s followed in California is a statically valid system and it has so been held by United State District Court.

One of the basic defenses that has been raised by the respondents is that the California System does not provide for reasonable variations, that is variations cause by discrepancies in manufacturing processes or gain or loss of moisture during the course of good distribution practices.

However, we wish to respond to this argument and that is that the California System does provide for reasonable variations and that these variations are taken into account through the lot averaging system.

In other words, variations are inherent by the very use of the lot averaging system.

Although, there is no specific mention in the California Regulation as to variations caused by loss or gain of moisture, variations under the state system can be for any reason or for all reasons.

We must emphasize that contrary to what the respondents would have the Court believe, reasonable variations do not mean shortages below the lot average.

This warning was clearly set out in handbook 67, published by the National Bureau of Standards of the Department of Commerce and handbook 67 states that this is the basic requirement of the National Conference of Weights and Measures and of the Food and Drug Administration.

We would submit to this Court that the Court of Appeals for the Ninth Circuit made three basic errors.

To the extent the time permits, I will discuss one of the errors and Mr. Goodman will discuss the other two.

The first one or the first error is the determination by the court with regard to the time when accuracy of weights and measures is to be determined.

The second error is in the court’s interpretation of the concurrent jurisdiction provisions in Section 408 of the Wholesome Meat Act which maybe found in Title XXI, Section 678.

And thirdly, the error by the court in its interpretation of the provisions of the Fair Packaging and Labeling Act insofar as it related to the Food, Drug and Cosmetic Act.

In this connection I refer specifically to Title XVI, Section 1461.

Justice William H. Rehnquist: Each of these errors Mr. Kier, I take it is in the context of the same that the Ninth Circuit was wrong in saying there was preemption?

Mr. Loyal E. Keir: That is correct Your Honor.

All three of these errors deal strictly with the issue of preemption.

I go now to the first error which we assert was committed by the Ninth Circuit, and that is in its determination as to the time when accuracy of weights and measures is to be determined.

And that is according to the Ninth Circuit is the time of packaging of the product.

The Solicitor General in his amicus curiae brief filed with this Court agrees with the Ninth Circuit that time of packaging is the key time.

Interestingly enough, however, the respondents contrary to the Ninth Circuit and the Solicitor General maintain that the proper time for determining accuracy is the time of shipment.

Petitioner contends that the state standard is the time of sale to the consumer, that this is the only correct standard and it is the only standard that can be correctly identified with the interest of the consumer.

Surely, we would be hard pressed to find even one consumer who -- when he picks up a food package in the supermarket and looks at the label, would think to himself that this label speaks as of the date of packaging or as the date of shipment from some distant shipping point.

The natural thing for a consumer to think to himself when he examines the package and looks at the label is that the label speaks to me now.

Justice John Paul Stevens: Mr. Kier, can I just be sure I understand your argument in this very point.

You say this -- the proper view is that the state requirement speaks that the time of sale to the consumer?

Mr. Loyal E. Keir: That is correct Your Honor.

Justice John Paul Stevens: And that the Court of Appeals for Ninth Circuit and the Solicitor General erroneously said that the time, the critical time was the time of packaging?

Mr. Loyal E. Keir: That is correct.

Justice John Paul Stevens: Now, were they talking you about the critical time within the meaning of the Federal Statute or within the meaning of State Statute?

Mr. Loyal E. Keir: Well, they were referring to the Federal Standard.

Justice John Paul Stevens: And do you disagree with their interpretation of the Federal Standard?

Mr. Loyal E. Keir: I plan to come to that, Your Honor.

Our position here is that the time of sale is not only the State Standard, but is also the Federal Standard.

This is the part of what I purpose to urge upon this Court.

Justice John Paul Stevens: That they have, they have in effect enforced their own law incorrectly is what you’re saying then?

I’m having trouble because it seems to me that you maybe arguing your opponent’s case if you’re saying the State Standard is A, the Federal Standard is B, therefore they’re different.

Then within the meaning of the statue, it seems to me you lose because the statute says you cannot have different standard.

Mr. Loyal E. Keir: Well, I propose to --

Justice John Paul Stevens: Just want to be sure I understand how your argument fits together?

Mr. Loyal E. Keir: I propose to urge upon the Court, Your Honor that the standard which we submit here, namely the standard of accuracy at time of sale is not only the State Standard but is also the Federal Standard and that both the Ninth Circuit and the Solicitor General are in error in their conclusion that the time of packaging is the Federal Standard.

Justice John Paul Stevens: In other words, you’re saying the Federal Statue requires the Department of Agriculture to use the time of packaging as the only permissible time for determining all this?

You require is to use of time of sale is the only permissible time.

Mr. Loyal E. Keir: The Ninth Circuit determined that the time of packaging is the correct time not because the Federal Statute stated that, but because this was the conclusion of the Ninth Circuit.

And the Solicitor General agreed with it.

As I stated, the respondents on the other hand disagree with both the Ninth Circuit and the Solicitor General and they claimed that the correct time is the time of shipment.

Justice John Paul Stevens: When you say the correct time, you mean the correct time, how do you measure correctness by Federal Law, by State Law or what’s better way to do the job?

I’m not quite -- I’m just -- that’s what I’m having trouble understanding?

Mr. Loyal E. Keir: Petitioner is trying to urge upon this Court what is the proper time for determining accuracy of weights and measures and as we develop our argument, we intend to present to the Court the proposition that this principle of having accuracy of weights and measures at the time of sale to the consumer is a standard which is both a State Standard as well as the Federal Standard.

Justice John Paul Stevens: One required by Federal Statute?

Mr. Loyal E. Keir: Yes.

Justice Potter Stewart: Alright.

I don’t like to bit of that horse, but the question in this case isn’t which time is the proper time from the point of view which is the best policy and which time is the best policy required that would be measured, but rather, what does the Federal Standard require and what does the State Standard require, that’s the question isn’t?

Mr. Loyal E. Keir: That is right Your Honor.

Justice Potter Stewart: And if there are different in this federal preemption that's if they are different in compatible, then there is a federal preemption, regardless of the wisdom of it, is that correct?

Mr. Loyal E. Keir: Well Your Honor, that is correct.

I see that my time is up.

Mr. Goodman and I are sharing our time.

I will now fill to Mr. Goodman.

Argument of Allan J. Goodman

Mr. Allan J. Goodman: Mr. Chief Justice and may it please the Court.

Let me begin by responding to Mr. Justice Stevens' question and Mr. Justice Stewart's question about the time and accuracy.

It is in fact there as the Court will see for Mr. Kier’s brief, I think he is just a little flasher in the oral argument that the petitioner’s contention as in is amicus contention on whose behalf I rise today is that the Federal Standard is true with retail.

The Ninth Circuits’ reasoning is that --

Unknown Speaker: That means true weighted sale?

Mr. Allan J. Goodman: That is correct Your Honor.

True weight to the business purchaser, true weight to the individual purchaser because that is the only way in which a businessman for example --

Unknown Speaker: [Voice overlap] if the Federal Statute is be read true weighted packaging time, that’s the end of this case, isn’t it?

Mr. Allan J. Goodman: No Your Honor, we don’t think that it is and I will come to the point in a minute if you are -- please --

Justice Thurgood Marshall: Attorney Goodman, if you crank it up a little higher, you get that mic -- no, you see on the side that -- the other way.

Mr. Allan J. Goodman: Federal -- the Ninth Circuit decision holds that the standard is true weight at the time of shipment from the packaging plant, but that and that reasonable variations are allowed thereafter.

Our principle contention on this point is that the phrase “reasonable variations” has been misconstrued by the Ninth Circuit.

For example, we know and this Court will of course recall its own decisions which say that the purpose of three federal statutes at issue here; Food, Drug, and Cosmetic Act, the Fair Packaging and Labeling Act and Wholesome Meat Act are all -- the language of the Fair Packaging and Labeling Act to provide consumers with accurate information as to the quantity of contents and other statements on package label.

Secondly, there is a decision of the Second Circuit, United States versus Great Atlantic and Pacific Tea Company, 92 F.2nd 610 in which the State Inspector found a prints of butter, one pound packages of butter to contain less product than stated on the label at the retail store.

In affirming the District Court’s conviction of Atlantic and Pacific Tea Company for misbranding, the Second Circuit said and I quote “there can be no dispute that the underweight prints of butter were misbranded.

Specifically focusing upon the reasonable variations language in the statute.

Let's consider the analogous statute the Federal Insecticide, Fungicide, and Rodenticide Act.

That Act provides as to the two of three acts here in questions; The Food, Drug and Cosmetic Act and the Wholesome Meat Act that the Secretary shall require true weight provided that reasonable variations maybe permitted.

Pursuant to that statutory command, first, the Secretary of Agriculture and later the Environmental Protection Administration, both require that some packages maybe over and under so long as the retail packages are of full weight.

Thus In that case as the court may recall from looking at the briefs, the Insecticide Act is true weight for packaged poisons.

There should be no reason why the statute at issue in this case which is the same language should permit short weight in food products.

Let me turn now to the questions of preemption.

Thus the first step is, is there a conflict between the statutes?

We have to deal with the three statutes in terms to the historical perspective.

The first is Food, Drug and Cosmetic Act which as the court, I’m sure recognizes does not have any preempted language.

So the question is in this Court for example in Campbell versus U.C. does this statute impermissibly conflict, does the California Law impermissibly conflict with the federal.

So our position is that it doesn’t because as I’ve just discussed the Federal Law requires true weighted retail.

Moreover, even if there is a conflict, prior decisions of this Court especially the decision of last term in Great Atlantic and Pacific Tea Company versus Cottrell specifically permit the states to have more stringent standards provided those standards are not discriminatory.

Chief Justice Warren E. Burger: But is that the language that's important or controlling in this case or is it the language dealing with requiring information different from as between the Federal and State Standard?

Mr. Allan J. Goodman: Mr. Chief Justice, I think Your Honor as referring now to Section 408 of Wholesome Meat Act.

Let me proceed directly to that point and discuss both the point and 1461 of 15 U.S.C which is the Fair Packaging and Labeling Act Standard.

The language in Section 678 of 21 U.S.C or Section 408 of Wholesome Meat Act only prescribes that states may not have marking and labeling packaging or in grit requirements which are in addition to our different standard under the Federal Law.

However, in the same sentence, later in the same clause, it gives the states concurrent jurisdiction to enforce adulteration and misbranding requirements and the standard to the met as so long as the state requirements for adulteration and misbranding are consistent with the requirements under the Wholesome Meat Act.

And thus, the only standard which the state must follow, which the states must follow on the Wholesome Meat Act is the same as under the Food, Drug and Cosmetic Act.

What Congress said, marking, packaging, labeling an ingredients are preempted, but misbranding is not.

Now contrary to respondent’s assertion and contrary to the assertion for example in the amicus brief filed by the National Independent Meat Pack Association, there is a distinction between labeling and misbranding.

What NIMPA argues in its amicus brief is that the term of labeling has swallowed up the term misbranding and is almost direct quote “labeling includes misbranding.”

But if that is the case, then how do respondents and respondent’s amici solve the problem of misbranding including definitions of things other than labeling.

For example, 601 and 5 of 21 U.S.C -- 601 and of 21 U.S.C. also says that package is misbranded if its deceptively filled, that is clearly not a labeling requirement.

So, there is a distinction between labeling and branding, something that we discuss in further detail in our brief and that same distinction applies to 15 U.S.C.

Section 1461 under the Fair Packaging and Labeling Act.

Finally, let me respond the question which was asked before is preemption the only grounds upon which we are to reversal?

The answer to that is no.

Assuming that Federal Law does not require accuracy a time of retail sale and assuming that this Court would otherwise or thereby hold that there is an impermissible conflict between the State and Federal Laws, it is amici’s contention that this Court’s decision last June after we filed our amicus brief, the National League of Cities versus Usery still compels reversal of the Ninth Circuit's decision.

The Ninth Circuit's reasoning is that the states may not exercise our sovereign police power to protect our business and consumer purchasers against deception in the sale of food product.

Justice William J. Brennan: Is it constitutional argument?

Mr. Allan J. Goodman: Yes Your Honor, it is.

Justice Potter Stewart: The National League of Cities decision might be very relevant and even persuasive here if were the state, they run the business of producing and selling the bacon or the flower, or it isn’t?

Mr. Allan J. Goodman: Mr. Justice Stewart, what Section 678 of Wholesome Meat Act says marking, labeling and packaging of ingredients may not be imposed by any state.

The state is in a business of assuring true weight at retail has always been that is historic police power recognize --

Justice Potter Stewart: (Voice Overlap) accept the argument, one could just forget the preemptive affect of the Federal Law?

Mr. Allan J. Goodman: No Your Honor, it doesn’t necessarily follow this case is even even easier than Usery because in this case, the activity engaged in by the state is the activity of a sovereign power.

This is the power which in Turner versus Maryland --

Justice William H. Rehnquist: But the sovereign power imposing regulations on private individual that not acting for its self, isn’t it?

We didn’t say -- we didn’t say in National League of Cities that the Federal Law governing wages couldn’t preempt state law governing wages, where you’re talking about applying at the private and the private concerns and isn’t that what you have here?

Mr. Allan J. Goodman: No Mr. Justice Rehnquist, I don’t think so.

The activity of the state here is an activity that can be engaged and only by a state.

Justice William H. Rehnquist: We’ll regulating people?

Mr. Allan J. Goodman: Yes Your Honor.

Justice Potter Stewart: By the state or -- in our society by the State government or by the local government or by the Federal government if whatever, but it’s pretty well accepted that if there’s incompatibility, then the Federal regulation preempts the others?

Mr. Allan J. Goodman: Let me return then in response to Your Honor's question.

Let me return then to Great Atlantic and Pacific Tea Company versus Cottrell in which the Court again held that the State of Mississippi could enforce it’s own more stringent laws with respect to the adulteration of milk products and let’s discuss the respondent’s argument in this case in light of that decision.

We know that in the Food, Drug and Cosmetic Act and in the Wholesome Meat Act the terms adulteration and misbranding are statutorily linked.

Thus in Section 408 of Wholesome Meat Act, it says that states may enforce adulteration or misbranding requirements so long as they are consistent with.

The respondent’s contention is that they cannot be held accountable for the standard of the product, the quality of the product, the contents of the product at the time it leaves the shipping dock.

What that means is that applies not only to net weight which was the question presented in this case, but to bacteriological standards as well.

And thus, if they cannot be required to have true weight at retail, then can they be required that wholesomeness of retail.

We submit to answer that question is all three federal statutes, excuse me, the Food, Drug and Cosmetic Act and Wholesome Meat Act require wholesomeness at retail as well the issue in this case turns on a question of whether we are going to revert to a standard of wholesomeness when packed as opposed to wholesomeness at retail.

Thus, under the language of ANP versus Cottrell, the state has a concern, an interest, a need to require true weight and wholesomeness retail and moreover so does the federal government and that is why the three federal statutes must be interpreted as requiring true weighted retail.

Chief Justice Warren E. Burger: There was no preemption to the question involved in the ANP case, was there?

Mr. Allan J. Goodman: That is --

Chief Justice Warren E. Burger: Just commerce clause?

Mr. Allan J. Goodman: That is correct, Your Honor and I appreciate the Court pointing that out because in this case, there is no commerce clause question because the respondents have not cross petitioned.

But the language of this Court in Cottrell, we believe it does stand for the proposition that there is an inherent interest on the part of the states in requiring true weight retail.

Let me in closing to make one other point and that is in the Solicitor General’s brief, they refer to the proposed revision of handbook 67 and lodged that with the court.

One of the statements in handbook 67, one of the conclusions of the author that would by the National Bureau of Standards is that the present packaging practice is for packagers to overfill between 70% to 90% of their product.

That appears in the handbook which has been lodged on page 12.

The present packaging practice of industry is to over pack.

In conclusion, we contend that for each of the reasons set fourth in our brief and as discussed today with certain gravity that Ninth Circuit decision ought not to be reversed.

What respondent seek is a rule that short weight by their interpretation of the reasonable variations provision that short weight packages must remain on sale and that overweight packages must be removed from sale.

And thus the Ninth Circuit held that one of the reason why the State Law was less stringent than the Federal Law was because we did not require enforcement action against overweight packages and it’s our contention and set forth more fully in our brief that that simply doesn’t make good enforcement sense, it is very expensive to the packer that doesn’t do anyone, any good.

Justice Byron R. White: Mr. General, has state abandoned any arguments about the Younger against Harris?

Mr. Allan J. Goodman: No Your Honor, but the problem if I may say so in this case is that that court granted petition for certiorari number 1053, but did not and they still holding the petition number 1052.

Justice Byron R. White: So, you haven’t abandoned it?

Mr. Allan J. Goodman: We have not abandoned those arguments Your Honor.

I’m course of the principle author of the brief and the Court has simply not acted upon it --.

Justice Byron R. White: And I suppose that if there really jurisdictional questions, we necessarily --

Mr. Allan J. Goodman: I’m sorry You Honor.

Justice Byron R. White: If there are jurisdictional questions that we necessarily must reach the (Inaudible)?

Mr. Allan J. Goodman: It’s an interesting procedure of posture in this case Your Honor.

There were in fact two complaints filed to the District Court.

The Rath versus Becker action upon which 1052 is based proceeded through a trial after objectives remain, after writ was taken in the Ninth Circuit and was denied on the jurisdictional question.

And this action, although file was not served until after the trial in Becker so that it would be possible I suppose for the Court to --

Justice Byron R. White: But jurisdictional issue certainly survives no matter what?

Chief Justice Warren E. Burger: Isn’t working in this case?

Mr. Allan J. Goodman: Well, Your Honor, that’s not the only issue looking in this case.

In fact, we have some evidentiary problems which are --

Justice Byron R. White: Well, I know but the jurisdictional issue is certainly hearing?

Mr. Allan J. Goodman: Yes, yes Your Honor and it is.

But Your Honor, I like me to respond --

Justice Byron R. White: No, but you haven’t abandon them --

Mr. Allan J. Goodman: No Your Honor, we have (Voice Overlap) we’d certainly do not want to that same question come up with subsequent cases.

Thank you very much.

Chief Justice Warren E. Burger: Mr. Dunlavey, we will ask you to begin at first thing in the morning at 10 o’clock.