Swift & Company v. Wickham

PETITIONER:Swift & Company
RESPONDENT:Wickham
LOCATION:Congress

DOCKET NO.: 9
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 382 US 111 (1965)
ARGUED: Oct 13, 1965
DECIDED: Nov 22, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – October 13, 1965 in Swift & Company v. Wickham

Earl Warren:

Number 9, Swift & Company Incorporated, et al., Appellants versus Don J. Wickham, Commissioner of Agriculture and Markets of New York.

Mr. Condon.

William J. Condon:

Mr. Chief Justice, may it please the Court.

This action comes here from the dismissal by a three-judge statutory court in the the Second Circuit, Common District of New York of a challenge by appellants to the constitutionality of a statue of the State of New York.

The appellants Swift and Armour packed frozen stuffed turkeys in their plants in Wisconsin and Minnesota.

These are packed under the jurisdiction of the United States Department of Agriculture, under the Poultry Products Inspection Act and they’re shipped in interstate commerce from those plants to the various states of the union.

State of New York has a statute as part of the Agriculture Markets Law regulating net weights and the labeling thereof, which provides as applied and agreed in the Court below as proper, requires that a product such as stuffed turkey be labeled to show the net weight of the turkey and the net weight of the total product.

Appellants labeled their turkeys with just the net weight of the product.

These labels are subject to the prior approval of the Secretary of Agriculture of the United States under the Poultry Products Inspection Act.

Each has an approved label showing just a single weight.

In the early part of 1963, each appellant separately filed an application with the Department of Agriculture, requesting approval for a label, which would show separately the weight of the turkey, the weight of the stuffing and the total weight.

These labels were rejected by the poultry division, I say rejected, actually the application came back commented on only, there is testimony of the trial indicate that this is the form in which a rejection takes at the Department of Agriculture level.

And following the rejection of those labels, this lawsuit was commenced.

Appellants challenged the constitutionality of the New York Statute on several grounds.

The first ground is that of violation of the Supremacy Clause of the Constitution alleging both preemption and conflict for the Federal Statue.

A violation of the Commerce Clause and interferences with the guarantees of the Fourteenth Amendment Due Process and Equal Protection.

Now three-judge court was convened.

Testimony was heard and at the conclusion thereof an opinion was written dismissing the complaint, it was unanimous opinion by the three judges.

At the outset I think it’s necessary to discuss the question here of jurisdiction of this Court, the District Court expressed the view in its opinion that it seriously questioned whether this was properly a matter for three judges.

Of course it follows from that, but there would be some question whether it was properly a matter for direct appeal to this Court.

The Court of the view that if the problem involved only that of supremacy, that prior to this Court’s decision in Kesler in any event, the District Court would have held without any problem that it was not a three judge matter.

That Section 2281 of Title 28 of three-judge statute would not apply to those circumstances and of course the Court noted however that in the Kesler situation, Mr. Justice Frankfurter writing for the Court indicated that where the conflict between the state and federal statute is immediately apparent without any serious necessity for the Court to construe statutes in order to get to the constitutional problem, that in that circumstance, Section 2281 ought to apply, the Court — Judge Friendly speaking for the Court below noted however that in the Kesler situation it was necessary for Mr. Justice Frankfurter after making this statement to do a considerable amount of statutory construction both of the Federal Act and the State Act involved and he therefore concluded that the question before him, that is the three-judge court was whether or not this Court had been required to do more statutory construction than had been required in Kesler and then the Court rather neatly side stepped the problem by reference to the lack of sensitivity of its witness paper in suggesting that we appeal to both the Court of Appeals and the Supreme Court in the event that his determination or suggestion might be wrong at least no serious damage would have been done for the litigates.

This we did.

Now looking first at Kesler, I believe that there isn’t any more certainly and I believe less statutory construction necessary here than was necessary in Kesler.

In that case you may recall that it was necessary for the Court to determine not only the meaning and policy of the Utah Financial Responsibility Act, but also a considerable amount of effort and attention was paid to the policy of the Federal Bankruptcy Act and indeed as I recall it, the dissenting justices didn’t agree on the construction of either one exactly with that of the majority.

So that there were serious questions of construction of the statute.

Here there is no problem with respect to the construction of the New York Act at all.

There hasn’t been any question about it.

We didn’t challenge the interpretation of the New York Act.

There hasn’t been any indication in the case or in the Court’s opinion that, that was problem.

William J. Condon:

The Court simply indicates that this is the way that Act is applied and it’s a perfectly reasonable construction of it.

There wasn’t any problem involved with respect to the Poultry Products Inspection Act to be sure it had to be looked at, it had to be studied, but no serious problems was presented by way of statutory interpretation.

There is some and I do disagree to a large extent with some of the things that the Court did, but overall in the opinion of Mr. Justice Frankfurter took some 20 pages to dispose of the problems of construing the two statues in Kesler, it seems to me that in this case we haven’t got anything worse than that.

We don’t have more.

However my —

[Inaudible]

William J. Condon:

I think that’s right.

I don’t believe however that this should have been properly a Kesler case in the first place.

I think that the determination of this Court in the first Avocado opinion which was purely a jurisdictional question —

Potter Stewart:

Justice Whitaker’s opinion.

William J. Condon:

That was Mr. Justice Whitaker’s opinion, yes sir.

In that case it came here on the pleadings and there was a division in the Court and this very problem of what’s the effect of a challenge to the constitution on supremacy ground was before the Court, but both majority and dissenting justices approached the problem on the basis that the determination of this issue rests upon the pleadings.

It rests on the issues that are raised in the pleadings, not on the determination of the three-judge court after it has heard the evidence and decided whether or not the issues raised were properly proved.

This is the problem here, from the standpoint of the determination originally made by the district judge to whom the motion was addressed, the three-judge court and Judge Friendly notes in his opinion that Judge Coket at that time couldn’t know that the other constitutional issues after proof would prove to be insubstantial.

But in the Jacobson case both Mr. Justice Whitaker and Mr. Justice Frankfurter realized that or at least seemed to recognize that the problem of jurisdiction is determined upon the pleadings.

This is what is presented to the Court and if the district court may enjoin the conduct complained of or enjoin the statute or declare unconstitutional, then that three judge court is necessary and a proper court.

[Inaudible]

William J. Condon:

We do and that has been held in abeyance at the Court of Appeal pending the determination of the jurisdictional question in this Court.

If I may turn to the merits of the controversy, the appellants’ claim here that with respect to the problem involved in this case, the Poultry Products Inspection Act, has preempted occupied the field.

Now, there have been of course a line of preemption problems and cases before this Court almost throughout its entire history.

We could quote the language of the various formulas that have been relied upon, but basically it seems that in every instance where the problem before the Court is one of Federal preemption.

What the Court is concerned with is the determination basically of the Federal Policy and whether or not the coexistence of state action in the areas involved would frustrate that Federal Policy or not.

What’s the Federal Policy we’re dealing with here?

First of all I think we ought to point this out, that the problem involved in this case is one of labeling.

The only thing that’s involved is what is to go on a label.

There has been consideration, there has been discussion at various levels and there were some in Judge Friendly’s opinion that the issue is one of a definition of net weight.

The appellants disagree with this.

I don’t think this is the issue at all.

There never was any problem about what net weight means.

Net weight isn’t defined they say in the Poultry Products Inspection Act, oddly enough it’s not defined in the Agriculture and Markets Law in the State of New York either, which whole purpose is net weight, that’s what it’s regulating, it doesn’t define it either.

William J. Condon:

This is not by way of criticism; it’s just the fact that net weight isn’t a problem to anybody who is concerned with weights.

We have gross, tare and net, the people know what they mean.

What’s involved here is what net weight is to appear on the label.

How are we going to label the product and what is involved simply from the standpoint of this Federal supremacy question is whether or not Congress in the Poultry Products Inspection Act has preempted the field of what is to appear on a label of a poultry product which is subject to this Act.

William J. Brennan, Jr.:

[Inaudible]

William J. Condon:

Well, I think that the Court had to reach before it could get to that one.

I think the Court had to dispose of the question of preemption because it seems to me that if the Poultry Products Inspection Act has preempted the area of the labels on these products, then it doesn’t make any difference whether there is a conflict or not.

The conflict problem only arises when you say yes the two may exist side by side, but not if there is a conflict.

William J. Brennan, Jr.:

[Inaudible]

William J. Condon:

Well, as I read the opinion Your Honor I believe that he had first decided that the Poultry Products Inspection Act does not preempt this field.

Then he moved into the issue of conflict and I think then the burden of his holding was this — the record isn’t right for determination on conflict.

For this reason there had been a failure to exhaust administrative remedies as he saw it.

William J. Brennan, Jr.:

[Inaudible]

William J. Condon:

Well, I think that the Court did reach it, if Your Honor please.

I believe the Court did reach it, but I think that the three of them they reached the question of preemption and found that it didn’t exist.

It said Congress hasn’t occupied the field and then moved on to –.

William J. Brennan, Jr.:

[Inaudible] any express statement by the Congress, is that what do you mean when you say preemption?

William J. Condon:

No sir.

William J. Brennan, Jr.:

How are you distinguishing conflict from preemption, I don’t –.

William J. Condon:

The way I distinguish is this, that are cases, we know cases for example the Campbell against Hussey situation, the Tobacco Inspection cases, tobacco labeling, where they — the holding is that when Congress has acted then there is no room for state action, you find this in the Interstate Commerce cases too.

The issue I think was argued here yesterday in connection with the National Labor Relations Act as well that can the two coexist even though they touch different things, even if they don’t conflict with one another?

Is it the policy that Congress wants to — wants its agency to do it all.

On the other hand, even though the two may coexist, take for example the Savage and Jones and McDermott and Wisconsin situation, where in Savage and Jones, the Court held that there maybe state regulation of labeling even though the Food and Drugs Act had something to do with labeling at that time, but then the McDermott situation came along and said yes there maybe state action, but not if it conflicts with the action of Congress with the federal action and this is where I am separating, this is how I developed the dichotomy.

It’s both under the supremacy clause, it is to be sure we are talking about supremacy, but in the one case if there is preemption since what I tried to answer to Mr. Justice Harlan, that if there is preemption, it doesn’t make any difference whether there is conflict or not.

Our original label because it bore the Federal approval would be adequate to go anywhere and the states would not be able to do anything about it, with respect to the text and the content of the label.

We are careful to keep it as narrow as I can with that in regard to this because there is no claim that the states can’t regulate false weights, improper weights, if they don’t get enough in the package.

I don’t think there is any question about the fact that the state retains the power to do this, but no false or improper weights involved in this lawsuit.

The only thing that’s involved in here is the manner in which it’s labeled.

Now, we claim that there is Federal preemption.

We claim that Congress has intended that the Poultry Products Inspection Act occupy the field with respect to the text, the form and content of labels on poultry products under the Act and we find that policy not because they used the words, the magic words to say so and not because they used uniform as was the case in —

William J. Brennan, Jr.:

Well, I gather that if Congress had said so explicitly we have no problem.

William J. Condon:

There wouldn’t be a problem, that’s correct.

William J. Brennan, Jr.:

But Congress I gather has not in this sense said anything, isn’t that right?

William J. Condon:

That’s right.

William J. Brennan, Jr.:

Now, then how are going to spell out that nevertheless that’s what Congress —

William J. Condon:

I think we have to define it from what Congress has done.

This is what — this is the problem that comes to the Court.

In this kind of a situation you look at what Congress has done and you try to determine whether or not any other holding would be consistent with the Congressional policy, whether they can consistently do what they try to do.

In this statute, the policy of the Act, I think with respect to this aspect can be defined from a look at what the Congress has done.

The definition section, for example, where they define immediate containers and it’s clear that this Act applies to immediate containers and an immediate container is defined to include a consumer package and that’s what we’re talking about in this case.

We’re talking about a turkey that’s wrapped up in a package that’s going to the consumer and Congress defines that in here, has some reason for this.

It provides for prior approval of labels by the Secretary of Agriculture and specifically for the prior approval of labels, which are going on consumer packages.

Now, Congress has said this, the regulations say this, they make it plain, that before we may use a label on any poultry product subject to this Act, we must first submit it and incidentally the regulations are very plain, we are not allowed to print it until after it’s been approved.

The Secretary of Agriculture must approve the label and this label must be on the product before we can ship it out of the plant.

As a matter of fact the Act, see what the Court and what Congress has done in the statute, that at the heart of it there are all kinds of regulatory provisions but the heart of the statute is contained in Section 6, 7, and 8.

Section 6 provides for the inspection of the product, Section 7 provides for the sanitary facilities and the practices, Section 8 for labeling.

Congress takes up the three of them with no differentiation, no distinction, there is no categorization or weight attached to one or the other.

Now the argument is made that it’s clear from the declaration to policy on the legislative findings of Congress Sections 3 and 2 in the inverse order, so all Congress was concerned with was on unwholesome poultry and the desire not to have unwholesome poultry moving in interstate commerce.

Well, this maybe so, this is what Congress has said, this is their policy, it’s what they are trying to do, is control the interstate shipment of poultry, so that they won’t have unwholesome poultry moving in interstate commerce.

Now then, that’s what they intend to by this statute and then they sat down and wrote the statute and they wrote in Section 6, in order to effectuate these policies we are going to have anti and postmortem inspection of the products of the plant, they wrote in Section 7 what they are going to do with respect to sanitary facilities and they wrote in Section 8 what they require with respect to labels.

Now it is a legislative certainly not a judicial determination whether or not the means which Congress has adopted in the statute are the best or the most appropriate means of effectuating the purposes announced.

But the fact is however that this is what Congress has done in order to effectuate the purposes described in the beginning of the statute.

Now I know that the Solicitor General has filed a brief as amicus curiae and has taken the position that this statute does not preempt the field and in his brief the Solicitor General on the page 19, quotes with rather substantial ellipsis from the – one of the house reports, when he says that net weight labels was merely intended to “Ellipsis”, round out, the Acts’ principle purposes.

On the page 33 of the appellant’s brief, the same quote appears only without quite so much of an ellipsis.

At the very bottom of the page, moving over on to the second page.

If the purpose is to establish a system of compulsory inspection poultry and poultry products in interstate commerce, moving down the last sentence, such inspection would be rounded out by requirements as to the maintains of sanitary facilities and the practices, and as to correct an informative labeling in products.

Now I presume that the Solicitor General doesn’t intend us to conclude from this that the maintenance of sanitary facilities and practices is as incidental to the wholesomeness and therefore the furtherance of the congressional polices as is that net weight labeling.

The fact of the matter is that Congress has chosen to regulate all three areas in order to establish — develop its purpose.

It’s not then for the Court to say whether this was appropriate or not.

Before I leave this question of preemption, I’d like to refer again to an argument raised by the Solicitor General.

William J. Condon:

Because Solicitor General in his brief makes reference to the exemption from the Food, Drug, and Cosmetic Act which that Act contains for products subject to the Meat Inspection Act and the substantially identical language which appears in the Poultry Products Inspection Act in 19A.

The argument runs that under the Food, Drug and Cosmetic Act this Court has always held that the state is free to regulate with respect to labels.

It follows and any such case under the Meat — under the Food, Drug, and Cosmetic Act which involved federal inspected meat, the Cockman case and he moves from there to indicate that if the Food, Drug, and Cosmetic Act applies to poultry, since the exempt to meat, since the exemptions are same under the poultry, then likewise it would apply to poultry after the interstate shipment has concluded and that being so, then obviously the states may do what they want after the interstate shipment is over.

And I call the attention of Court the argument for several reasons.

The first is that I think the statement originally that this Court has consistently held that the Federal Food, Drug, and Cosmetic Act did not prevent state action is a grutalative statement.

That the cases cited in support of that proposition are all cases involving the Food and Drugs Act of 1906.

So far as I know this question hasn’t been presented to this Court with respect to the Food, Drug, and Cosmetic Act of 1938.

Now this has not suggested necessarily the Court would reach a different result, but it is to suggest that it need not necessarily reach the same result because the labeling provisions and requirements under the Food, Drug, and Cosmetic Act of 1938 are substantially more detailed and more stringent and in many areas perhaps preemptive.

Certainly I think this must be true with respective prescription drugs and things of that sort, but in any event the cases don’t support the principle.

This is the basis for this argument.

The second leg of the argument I believe is the Cockman case and as I say that was a prosecution with criminal case, the prosecution for removing labels from federally inspected meat after the shipment in interstate commerce was over.

With respect to that case, I can only say this.

In the Court of Appeals opinion the question of the exemption from the Food, Drug, and Cosmetic Act was never raised.

The Court of Appeals doesn’t discuss it and in the petition for certiorari which was filed with this Court, the petitioner doesn’t raise it either.

Now the case certainly is something less than authority for the proposition that the Food, Drug, and Cosmetic Act applies immediately to meat products when their interstate movement is through.

And finally its the language of the exemption as written into the statute, Section 19(a) is that secretary’s authority should be exclusive in poultry and poultry products should be exempt from the provisions of Federal Food, Drug, and Cosmetic Act as amended to the extent of the application or the extension thereto, of the provisions of this Act.

Well then it begs the question, and question is how far does this Act extend and if this Act as I contend does extend in the case of consumer packages which are regulated in the statue, which are prescribed as to their labeling in the statute and the regulations and for which the labels must be approved by the sectary before they can be put on the product and if as I contend this Act carries to the consumer with respect to that label, then it begs the question to say that, this exemption is the same as for meat, because it is as far as the exemption is concerned, but certainly that doesn’t define the extension of this Act, to determine where the exemption begins and ends.

The other half of the supremacy argument, the one which gave everybody so much trouble and certainly did the Court below and that’s the question of the conflict with the Federal Statute.

I don’t think there is much very much doubt that factually we have a conflict as of the moment we have a product with a label which is approved by the Department of Agriculture, which we sell everywhere in the United States except the State of New York.

That product cannot come into New York with that label on it.

Potter Stewart:

It can come into New York with that label on it, if the New York label is added, isn’t that correct?

William J. Condon:

Well, as a practical matter I mean —

Potter Stewart:

New York would not require the deletion of the Federal label would it?

William J. Condon:

Oh, no it has — it requires more, but I think as the Solicitor General points out and as I’ve tried to, as a practical matter the only place this product can be labeled to satisfy New York is in the plant in Minnesota.

Potter Stewart:

Is in the plant, yes.

William J. Condon:

You can’t do it anywhere else, that’s the only place where we’ve got the information and the weight.

So the question really comes what do we have to put on the product in Minnesota?

Now New York says we have to put on that product in Minnesota two weights, weight of the turkey, the weight of the product.

Department of Agriculture has turned down our application for a label, which would satisfy New York requirements.

And this raises the question now of — two questions really, the Court below indicated first of all that we could use a supplemental label.

William J. Condon:

And this way everybody would be happy, but there are one or two things wrong with that, first of all I think that the Court below unduly restricted the definition of label in the statute.

As the label as you know and this Poultry Products Inspection Act is defined to include both the definition of label and the definition of labeling from the Food Drug and Cosmetic Act.

They were lifted banally and made into one definition and that’s any written, printed or graphic material on the product, on the label or accompanying such product.

Now this Court has already defined what accompanying such product means as those words were used in the Food Drug and Cosmetic Act.

In the Cardell case, you may recall Cardell against the United States, a criminal prosecution for misbranding a product when introduced into interstate commerce, 301 Food Drug and Cosmetic Act, and this Court held that, that product was misbranded when the misrepresentation, the false misleading material followed the product in interstate commerce by as much as 18 months.

So that there isn’t any way really that we can have additional information to go with the turkey even if it were physically possible to do it and practical.

There isn’t anyway we could do it without it being part of the label and therefore subject to the prior approval of the Secretary of Agriculture.

Byron R. White:

[Inaudible] would have agreed with you if this had been a final administrative action, wouldn’t it?

William J. Condon:

I don’t know, I don’t know if they would or not because the Court below disposed of all of these things and finally said, but we’ve got here a civilian federal official.

Byron R. White:

If at the end of the administrative process, the federal authorities did not let you put this information on the turkey, on this turkey at all, are you — and New York wouldn’t let you in without it.

Isn’t that a conflict or not?

William J. Condon:

I’m sorry, I didn’t —

Byron R. White:

Would the court below admitted that, that was a conflict or not?

William J. Condon:

Well, I’m not sure that it would because the court below did spend a good deal of time on this possibility of a supplemental label.

It also apparently defined the, what I call the preempted area.

You see they recognize a certain amount of preemption by saying that what you put on in this supplemental label can go there as wrong as it’s not on that part of the federal label, which would imply federal approval.

Byron R. White:

Yes, but what if at the end of the administrative process this is — that the administrative officials have finally determined that this information just wasn’t going to go on that turkey, whether it was on the same label or a different label?

William J. Condon:

I think if it meant plain enough, surely the Court below would have recognized the conflict.

Yes I agree with that.

William J. Brennan, Jr.:

Well what does this mean at page 20 of your brief Mr. Condon?

As testified by Mr. Hebert, Deputy Director of the Poultry Division of the United States Department of Agriculture, dual weights which New York demands would not be allowed out of the appellants plants in Wisconsin and Minnesota.

William J. Condon:

First of all I think there is a portion missing of a sentence in the printing there.

It should have read products bearing dual weights would not be allowed.

William J. Brennan, Jr.:

What are the words product bearing?

William J. Condon:

Product bearing dual weights, which New York demands.

William J. Brennan, Jr.:

Product bearing.

William J. Condon:

Did that help?

William J. Brennan, Jr.:

I still — that doesn’t help too much.

William J. Condon:

Well, what happened, the —

William J. Brennan, Jr.:

The sense I get out of this is that somebody testified in effect that you would not be allowed to ship turkeys from Wisconsin and Minnesota, if you had any label which complied which New York requirement.

William J. Brennan, Jr.:

That —

William J. Condon:

That’s right.

William J. Brennan, Jr.:

That’s not how it would be a violation of federal requirement.

William J. Condon:

That’s right, that’s what he testified, if you put this on, we won’t let it out of your plant.

William J. Brennan, Jr.:

But I don’t — what was the reason Judge Friendly thought they had to exhaust some administered remedy, what was that all about?

William J. Condon:

Well, Judge Friendly was concerned about the fact that —

William J. Brennan, Jr.:

This fellow is too far down the line, is that it?

William J. Condon:

Yes, I think that’s it.

William J. Brennan, Jr.:

But you have to go to whom, the Secretary himself?

William J. Condon:

Well, the Act provides this that you must — the Act, the regulations say you must get approval from the Secretary.

Then it says if you don’t accept, if you do not accept the determination of the Secretary, then you may have a hearing, administrative hearing, and then if you are aggrieved or adversely affected after that you may go to the Court of Appeals.

Now —

Byron R. White:

Meanwhile you are out of business.

William J. Condon:

Meanwhile you are out of business

William J. Brennan, Jr.:

But did Judge Friendly — well I’m understanding had this in mind, that it might be that if you got high enough up within the department someone would authorize you to comply with — would allow you to comply with the New York regulation without being in violation of the federal regulation.

William J. Condon:

That was his position, yes.

William J. Brennan, Jr.:

And we don’t know if that’s so or not, do you, other than this kind of testimony that wouldn’t be so.

William J. Condon:

Well, I can only — I refer to that testimony and then I refer further to page 36, I believe in the record and is one of these exhibits to the complaint.

It was an amendment to the regulation, which was in the federal register on January 16, 1963, this was prior to the beginning of this lawsuit, and in the middle of the second column there is explanatory material with respect to the amendment and in that explanatory material, the Deputy Administrator, this Bureau, the marketing services points out that this amendment clarifies the original intent of the regulation, but I think it more recently understood that the net weight required to appear on the immediate container of any poultry product is the net weight of the poultry product and includes in addition to the weight of the poultry, the weight of any ingredient that is combined with the poultry and the product and excludes the weights when are dry packaging materials and so on.

Byron R. White:

That doesn’t go on to say that net weights will not be allowed in addition to Judge Friendly’s point.

William J. Condon:

Yes.

Byron R. White:

It does not go on and say that net weight in addition are barred?

William J. Condon:

No, it does not, but it does rather say affirmatively that when we say net weight in our regulation, we mean the net weight of the poultry product and not exclusive of these other ingredients.

Byron R. White:

There is something in there that says that both weights won’t be permitted?

William J. Condon:

No, not specifically in so many words.

Byron R. White:

The only thing in the regulation, but there is something in the letter you received, then in the testimony in court that it wouldn’t be permitted?

William J. Condon:

That’s right, that’s right.

Our position on this of course is that Congress has been rather careful in the choice of words in this thing.

Now, the Solicitor General says the record isn’t right because we had an administrative procedure, we had remedies, but first of all remedies suggest that you’ve been wrong.

I’m not challenging what the Secretary of Agriculture has done.

William J. Condon:

We have no challenge to that.

Now I am not — first of all, I personally haven’t been able to find any authority for the proposition that we must exhaust our administrative remedies in order to rely upon an administrative determination.

Now, surely while the Solicitor General suggests that this subordinate Federal Official hasn’t really undone anything, this same subordinate Federal Official has approved every label that’s moving in interstate commerce and poultry products today.

The law says if you don’t get approval from the Secretary, you can’t ship and your product is illegal.

Surely, we don’t understand the Solicitor General to say that isn’t an approval label.

There must be.

So that what this man has done, the delegate of the Secretary must have some legal significance.

Now we have in the odd words that Congress used, we have accepted the determination of the Secretary.

Our argument of course we laid it out in the brief was that Congress must have intended that the Secretary himself wasn’t going to approve these labels in the first instance and yet it provides for a hearing, an appeal from the Secretary’s determination.

So that this was the determination of the secretary.

The rejection of our label was the determination of the Secretary of Agriculture.

Byron R. White:

But you would make the same argument without the determination wouldn’t you, that you would just make the argument that the states law has nothing to do with it at all, and whether there been a determination or not, New York did not exclude your turkeys by requiring any kind of weights on the turkey.

William J. Condon:

I make that argument with respect to the preemption.

Byron R. White:

Yes.

William J. Condon:

But these of course have to be alternative arguments.

I don’t pretend that there is a must response to this Court, by this Court to a preemption argument.

These are very difficult questions.

But I say if you do find that there is not a preemption then there is this conflict.

William J. Brennan, Jr.:

Well, when you get to the conflict, kind of what troubles me is, why, if there is no conflict certainly, if administratively the Secretary of Agriculture would have say go ahead you can comply without violating our regulations with a New York requirement, it would mean I gather that then your processing, you’d have to setup another step in the process, but that’s another problem.

William J. Condon:

That’s another problem, that’s commerce.

William J. Brennan, Jr.:

Yeah, but I don’t see why — there is no conflict certainly if the Secretary says go ahead and comply with the New York requirement, is it?

William J. Condon:

Well, that’s very true, but Mr. Justice Brennan.

He said there is a conflict because he did say —

William J. Brennan, Jr.:

I can understand your argument on the so called preemption side, but I don’t see on the conflict side that whether you can create a conflict if you can get out of business.

As Mr. Justice White observes, of course we’ve got somebody in here who has testified that they wouldn’t let you do it.

William J. Condon:

Well, that’s true.

Again though in candor I must say he is another subordinate federal official.

He may not be quite as subordinate as the Head of the Poultry Product Section, but he is only a step further up.

The Deputy Administrator has indicated that this is the way they interpret it and our experience has indicated, and based upon our experience we didn’t see any point in going up the administrative ladder to get further indications that we were going to get any same result that we got here.

Earl Warren:

We will recess now. [Inaudible]

William J. Condon:

No Your Honor.

Thank you Mr. Chief Justice may it please the Court.

At the recess we were talking very briefly about the problem of getting a product out of the plant, if it didn’t bare a label which was approved by the Department.

A word in that regard might be an order.

I’m sure the is Court is aware of the way the Poultry Products Inspection Act is enforced or applied by the Department of Agriculture.

Substantially the same system has been in effect under the Meat Inspection Act for the last — close to 60 years even though this statute is relatively new.

There are full time inspectors on the plant at all times.

No product can move out unless it is approved by the inspectors and no product in package form may leave the plant unless it bears an approved label and it was on this basis I think that Mr. Howell was able to say in response to the question of the trial, we wouldn’t let the product out of the plant.

Byron R. White:

How long would it [Inaudible]

William J. Condon:

Mr. Justice —

Byron R. White:

[Inaudible]

William J. Condon:

Mr. Justice White, I’m sorry to say I have no information on which I base an answer to that.

My information not only from the Swift & Company, but from the Department of Agriculture is there has never been such a hearing.

Byron R. White:

[Inaudible]

William J. Condon:

Well, we’ve been involved in hearing from the Department of Agriculture to be sure.

Byron R. White:

[Inaudible]

William J. Condon:

This I don’t have any information with which I can answer your question.

I don’t know.

Hugo L. Black:

But you can try.

William J. Condon:

For number of reasons Mr. Justice White, first of all, by reason of the regulation in the explanatory material which I read prior to the recess, we didn’t expect the label to be approved.

Quite frankly we expected that this interpretation which was written in that federal register release would govern, but my client, the company didn’t want to start an action until it had at least made this effort.

Having made the effort and having got the response they expected to get, not they applied for, but they expected to get this response, then it was felt it would be useless to go further because the response that we got from the Secretary’s delegate was precise to the same as what was forecast by this regulatory release.

Hugo L. Black:

Well is that generally a good reason for not going up if you have a chance to go up in the case?

Can you say well we knew when we got up there, we knew it required valid, but we know when it gets up there you decide against it, so we didn’t waste time on it?

William J. Condon:

Well a legal advice was sought by the client and the legal advice was no we don’t think there will be any difference, we don’t anticipate there will be any difference.

Hugo L. Black:

I do not think there will be any difference, but was the legal advice that we have no right to go, there is no regulation which authorizes to go to anybody.

William J. Condon:

Oh, no sir it’s clear under the statute we did have a right.

Hugo L. Black:

To go where?

William J. Condon:

To go to hearing at the Secretary’s level, the statute says that —

Hugo L. Black:

But you thought the Secretary would decide against you and therefore you didn’t do it?

William J. Condon:

Yes sir, that was the fact and I think I should —

Hugo L. Black:

But you’ve got a good excuse legalistically.

William J. Condon:

Well I don’t know, as I need an excuse, that — probably the problem is a matter of emphasis.

Byron R. White:

Well, put it this way, what do you think New York would have said if the Secretary, had said we want only one weight on the bird and no other one, that’s what the regulation means and if it takes the regulation, here is the regulation, what do you think New York would have said?

Do you think they would have said, you stay out here until you get a court order?

William J. Condon:

I think New York would have said precisely that.

Byron R. White:

Well I know, but you don’t really know, do you think the New York officials would have said then, awfully sorry but we won’t stand for what the Secretary is saying.

I mean if your choice is just for to litigate in the Department of Agriculture or in court, why shouldn’t you go to the Department of Agriculture?

Might not have taken as long as — how long this has been in court?

William J. Condon:

1963, the Fall of 1963.

Tom C. Clark:

[Inaudible]

William J. Condon:

No, did they?

I’m sorry, the question, did they?

No there really wasn’t any proceeding Mr. Justice Clark.

We merely filed an application for label approval.

Tom C. Clark:

Would you anticipate that they would come in if it was at the secretariat level?

William J. Condon:

Well, after reading Judge Friendly’s opinion, I would now anticipate that they might.

At that time if you asked me the same question my answer would be no, this is a matter between company subject to regulation and the regulatory agency, I would not expect that the state of New York was —

William J. Brennan, Jr.:

[Inaudible] if the client was satisfied with the answer got at the level of first bureaucrat, any reason to go beyond the bureaucrat.

William J. Condon:

Well I would say this in all candor Mr. Justice Brennan, the answer that the client got was a satisfactory answer to the client.

The overriding clamor in the food industry today is for uniformity of labeling.

This is the one thing that our people talk about, complain about more than any thing else.

William J. Brennan, Jr.:

So if you had gotten further, all you would have wanted was affirmation of the advice that you got at the first level.

William J. Condon:

The only purpose of it would have been to — perhaps like a better record and this didn’t seem to make a great deal of sense.

[Inaudible] in New York requirements was to get an opposite result.

William J. Condon:

No Your Honor.

Which you asked for wasn’t it?

I mean, that’s perfect and proper.

William J. Condon:

It is proper, but it isn’t true.

It would have been a proper thing to do I think, but it isn’t true because at the time, at the time we made this application there still was ample time to take advantage of the holiday season, it’s a holiday product at its principle distribution, big thrust and there would still be time to stuff a lot of turkeys for New York and get them into the New York market and the commercial people raised a clamor for us to take just one more step before we did anything further.

William J. Condon:

Having done that then other people said no, that’s enough, we’ve gone far enough now.

If we are going to determine this thing we might justice as well figure that we’re out of the New York market until the matter has been clarified judicially.

Are you complacent as to which way this case goes on the merits or in other words if you are told you have to comply with New York regulations as well as federal regulations, does that satisfy you?

William J. Condon:

No sir, we’re not complacent because while a statement, a simple statement of the facts in this case will indicate that we’re litigating about the label on a stuffed turkey.

The fact of the matter is we’re litigating about the labels on all kinds of combination products which contain meat or poultry, both of which we deal in, both appellants deal in, and other food ingredients, and we make hundreds of such products.

Now the statute that we’re talking about, the New York Statute applies by its terms not only to stuffed turkey, it applies to any combination product which is other than a ready- to-eat meal, which contains meat, poultry or sea food and other edible ingredients.

Now this is pork and beans, corn beef hash, frozen dinners, all of these things, they are all covered by this, and we make all of these things.

And if these labeling requirements are going to be extended to all of these products, John Madden, the Director of Weights and Measures of State of New York in his testimony, he said, no, we don’t apply this law to meat products, and we don’t apply it to sea food products, and we don’t apply to other poultry products, we don’t apply it to soups, we don’t apply it to turkey dinners, TV dinners, and things of that sort, because in his idea was it was impossible to do so and enforce it, they couldn’t check the weights on these things.

But he said, we are anxious to see how this case comes out because we’ll have to be guided by the law as it’s told to us.

Hugo L. Black:

Would you mind stating what’s the practical effect, what’s the practical reason to give New York for having this requirement about the stuffed turkey?

William J. Condon:

I’m sorry, I’m not sure that I understand your question sir.

Hugo L. Black:

What does the label require?

What is the label?

William J. Condon:

The label?

Hugo L. Black:

Yeah.

William J. Condon:

And what does it required under the New York Law?

Hugo L. Black:

Yes.

William J. Condon:

The New York Law requires that a stuffed turkey in this case, show the net weight of the turkey and the net weight of the total product.

Hugo L. Black:

Now what’s the reason for that?

What — there is some reason for it actually speaking.

William J. Condon:

Well the reason has — it has been —

Hugo L. Black:

What do they do?

William J. Condon:

The reason as it has been expressed is that the consumer has a right to know how much turkey he is getting.

Hugo L. Black:

Well, to that extent you would agree with them, wouldn’t you?

William J. Condon:

Surely, I don’t have any quarrel with the fact that the consumer might be better informed if we gave more information.

The same however would be true if we told how much mash potato there was in the TV dinner or how much peas.

Hugo L. Black:

Well, it might not be necessary in some field as others.

William J. Condon:

I think though that —

Hugo L. Black:

In fact, it might be that a nice fat looking round turkey, if you had to stuff it out [Inaudible] it might look different to the customer.

William J. Condon:

Well this —

Hugo L. Black:

I’m just trying to find what it should have.

William J. Condon:

I don’t think — actually, I don’t think this is so from what our people say and what Mr. Howell testified that you see a turkey doesn’t stretch, we don’t take the ribcage out of these things, all we do is fill what’s there.

Hugo L. Black:

But it would look a little bigger, wouldn’t it?

William J. Condon:

No, generally speaking it won’t look any bigger.

The ends of him will be rounded out, it will make a prettier package perhaps because the ends are kind of rounded out, but other than that the body of the turkey doesn’t stretch or expand, it stays the same.

Byron R. White:

[Inaudible]

William J. Condon:

Quite true, it’s possible as it was indicated in this —

Byron R. White:

Got heavy stuffing where the housewife pays more, she may not care how it looks but she might be quite interested in how much meat she is getting for it instead of stuffing.

William J. Condon:

hat’s absolutely, that’s absolutely right.

Of course people say we stand and run for office every single day with that electric and we are not interested and no manufacturer who is in the business is interested in selling one turkey to somebody.

We want to sell that person over and over again.

These things are to an extent self regulating.

Now we are not talking, clear we are not talking here about any fraud, we are not talking about any misrepresentations.

We are talking about two different ideas from two different regulatory agencies as to which information best serves the consumer’s interest and both of these agencies are interested in the consumer’s interest.

Now as far as the appellants are concerned, if the Department of Agriculture would take the view that all stuffed turkeys ought to show both the weight of the turkey and the weight of the product, we would have no problem with this, because then again we would be back to uniformity.

We could use the same label wherever we were going to ship that turkey and we wouldn’t have to police the shipment of it.

We wouldn’t have to worry about whether a turkey with one label was going into a place where that label was not acceptable.

These are the things which —

William J. Brennan, Jr.:

May I ask you Mr. Condon, without a further administrative determination in the Department of Agriculture, which as I understand Judge Friendly’s position might result in your being relieved by the resolution in the department of the question of any requirement to comply with the New York labeling.

Under the present state of this record how can we resolve the conflict point of your argument?

I can understand that on the preemption point of your argument, we can say preemption wise you’re relieved of any obligation to comply with the New York regulation, but when we get to the conflict side of it, on the present state of this record how can we determine that?

William J. Condon:

Well I think you can do it one of two different ways.

You can either hold that you don’t have to appeal from an administrative — a proper administrative determination that you are not aggrieved by —

William J. Brennan, Jr.:

In other words, what that Deputy Director or whatever, that settles the question that on the federal side, the federal determination is you don’t have to comply, is that it?

William J. Condon:

That’s right.

William J. Brennan, Jr.:

Without —

William J. Condon:

That’s right.

William J. Brennan, Jr.:

What’s the other one?

William J. Condon:

The other one would be to read that as being the action of the Secretary, which is what the statute says.

The statute says we must have a label approved by the Secretary.

William J. Condon:

It further says, that if you don’t accept the Secretary’s determination, the only determination we have is one, so that if you don’t accept the secretary’s determination, then you may have an administrative appeal.

Now this is an appeal from the secretary to the secretary.

It is however the action of the secretary.

However much people may refer to a subordinate federal official in the language of the statute, it’s the Secretary of Agriculture.

Byron R. White:

Meanwhile, if you have to appeal you are not — your turkeys are still in the plant.

William J. Condon:

That’s correct.

Byron R. White:

You can’t get them into commerce.

William J. Condon:

I can get them into commerce, but not into New York.

Byron R. White:

Not into New York and [Inaudible]

William J. Condon:

In a sense, in a sense that’s true.

Abe Fortas:

Mr. Condon.

William J. Condon:

Yes sir.

Abe Fortas:

Your clients sells, does it not, a number of products, which are regulated as to labeling and packaging by the Federal Government in one way and by various other states in their different ways.

For example, oleomargarine.

William J. Condon:

Yes sir.

Abe Fortas:

Now, is it your position that in each one of those situations, and I’m talking about a situation where there are federal labeling requirements as to weight etcetera, that the federal regulation should be held to preclude state regulation?

William J. Condon:

No sir, our position or our contention is confined to the situation where as here and in the Meat Inspection Act, we are dealing with labels, the text form and content of which must have the prior approval of the regulatory agency before we can use them.

Now, in the case of oleomargarine and other food products which are regulated by the Food, Drug and Cosmetic Act of the Food and Drug Administration, under that Act, there is no prior approval, requirements of those statutes are set out and as long as you meet them, that’s all that matters.

Abe Fortas:

Will you please tell me why a prior approval makes a difference with respect to the constitutional issue, that is to say if federal power should in case of specific labeling requirements preempt the field to the — so as to preclude state regulation, why does it matter whether there is a requirement of prior approval or not?

William J. Condon:

I think that the burden of my argument Mr. Justice Fortas is this, that where Congress has spoken with specificity about labeling requirements and then has charged the agency with the prior approval of labels in connection with that specificity of requirement, that the additional requisite of prior approval indicates to a far greater degree the intent of Congress that, that control of labels shall be exclusive of all other control.

In other words, it’s another facet to give weight to the claim of federal preemption.

Abe Fortas:

Well there is, there are —

William J. Condon:

In the case of, excuse me, in the case of products under the Food, Drug, and Cosmetic Act for example, there is no easy answer that would cover all products.

In some cases, you will have preemption, in other case you will not.

I anticipate these, I’m not citing specifics at the moment.

Abe Fortas:

And there are also some statutes are there not in which Congress has expressly provided for preemption?

William J. Condon:

Yes, there are sir.

Excuse me, the government’s amicus brief as I understand it is opposed to your position, in other words they suggest affirmance on various grounds, including among others that there is no preemption here and that New York can consistently with the federal regulation do what they have done.

William J. Condon:

That is correct.

Now we had to take it that the Solicitor General is speaking to the views of the Department of Agriculture and thus the agency.

The brief is captioned as brief of the United States and sometimes the United States disagrees or the Solicitor General disagrees with the Department of Agriculture, but how should we take this?

William J. Condon:

Well I’m not sure that I’m the proper person to ask that.

Yeah why [Inaudible]

William J. Condon:

You’ve asked it and my answer is that I do not believe that the Solicitor General’s brief reflects the views of the Department of Agriculture.

You do not believe it does?

William J. Condon:

That’s correct.

Well what if it did, I actually think that would be a very great weight against your position.

William J. Condon:

I think it would weigh heavily, it surely would.

I don’t think that the —

And are we entitled to know whether this does represent the views of the Department of Agriculture?

William J. Condon:

I would certainly think you are.

Earl Warren:

[Inaudible] legislative history of this labeling act would indicate that the Congress intended to preempt the field?

William J. Condon:

Nothing as specific as I’d like to have it Mr. Chief Justice.

There are references, not great references to labeling.

The legislative history was largely concerned with the problems of wholesomeness and the — I think the — there were one or two references in our brief but the references that are in the Institute of Poultry Industries, amicus brief are as good as you can get.

Earl Warren:

Excuse me, we’ll write that down.

William J. Condon:

I’m suggesting merely that the references in the amicus brief are probably the — as wholesomeness as you can find on the question of labeling in the legislative history of this statute and if we all agree that, that isn’t dispositive of the issue it would be helpful, I would be delighted if there were a lot more.

But this is not the problem that was accorded a great deal of attention in the legislative history.

Abe Fortas:

Excuse me sir, but as I understand your answer to my questions, you are inferring from the fact that Congress acquired prior approval, a congressional intent to preempt the field.

William J. Condon:

I’m inferring from that, plus the other things which I mentioned yesterday.

Earl Warren:

Perhaps the Department of Agricultural or the Solicitor General will indicate to us whether or not they are in agreement, the two departments of the government, do you think that would be appropriate?

William J. Condon:

I think as I indicated to Mr. Justice Harlan, I think the Court is entitled to know that.

Earl Warren:

Perhaps Solicitor General will do that for us.

Byron R. White:

[Inaudible] what do think the position of the Solicitor General is vis-a-vis the Department of Agriculture in its legal opinions?

William J. Condon:

What do I think it is?

Byron R. White:

Yes.

William J. Condon:

Well —

Byron R. White:

In short let me put it this way, why isn’t the views, why aren’t the views of the Solicitor General automatically and necessarily the views of the Department of Agriculture?

William J. Condon:

I don’t think I can answer that one.

Byron R. White:

But you’ve already answer it one way by saying that they aren’t.

William J. Condon:

I don’t believe that they are and that’s correct.

I don’t believe that the views expressed —

Byron R. White:

For example you’re talking about the solicitor for the Department of Agriculture or the Secretary or the head of the Weights and Measures Department or what?

William J. Condon:

I only —

Byron R. White:

Who represents the legal view of the Department of Agriculture?

William J. Condon:

Basically, I think officially it has to be Secretary.

Byron R. White:

In this Court?

William J. Condon:

Oh not in this, no sir.

The position of the United States is that presented to you by the Solicitor General.

Byron R. White:

Well then how can you say that position of the Department of Agriculture isn’t that view?

William J. Condon:

Well I was careful not to say that until somebody asked me if I thought this represent of the view and I don’t.

Byron R. White:

Well I gather Mr. Condon we’ve had other instance in this where the Solicitor General got up and told us he believes one thing and the general counsel of some federal agency takes a different position, it wouldn’t be the first time that’s happened.

William J. Condon:

There have been cases and reports of course indicating representatives of both.

Tom C. Clark:

We have had the [Inaudible] not to accept it?

William J. Condon:

United States versus United States.[Attempt to Laughter]

Byron R. White:

Is there any — do you have — what’s the basis for saying this doesn’t reflect the views of the Department of Agriculture, what’s your basis to that?

William J. Condon:

Conversations that I’ve had with.

Byron R. White:

With the Solicitor or with the Secretary?

William J. Condon:

General Counsel, representatives General Counsel’s office and an Assistant Secretary.

[Inaudible]

Earl Warren:

Solicitor General Hirshowitz.

Samuel A. Hirshowitz:

Mr. Chief Justice may it please the Court.

We went to —

Earl Warren:

May I ask you before you get into your argument, do you happen know anything about this discussion we’ve had here whether the Department of Agriculture agrees to the position of the Solicitor General?

Samuel A. Hirshowitz:

No sir.

Earl Warren:

You do not know, right.

Samuel A. Hirshowitz:

We are interested in getting a decision on the merits by this Court, but nevertheless in view of the expression of opinion and the opinion of the District Court about the jurisdictional point, we thought it necessary to brief the point in this Court.

Under Section 1253 of the code, this case can be heard by — on a direct appeal only when a three-judge court is required to hear the case.

Under the doctrine of preemption, this raises no direct constitutional question and there would be no requirement for a three-judge court.

On the question of conflict, in this case it becomes apparent, both statutes are identical in language, both say net weight and in an order to attack the application or the practices of New York State, it was necessary for the appellants to have the court construe the interpretation by the Commissioner of Agriculture of the State of New York under a regulation issued by him pursuant to that Section 193 of the Agriculture Markets Law.

Samuel A. Hirshowitz:

So you have two ways being moved.

First you have the statute, which has the identical language that the federal statute has, net weight, then you have a regulation issued by the Commissioner of Agriculture of the State of New York, which defines the net weight.

Then you have an interpretation by the Commissioner of Agriculture following that regulation which actually is the point in controversy here that brings the case into Court.

And as we read the Kesler case, this was not a case for a three-judge court.

The particular phraseology in the Kesler case was, if an immediate controversy is not the unconstitutionality of a states statute, but merely the construction of a state law or the federal law, the three-judge requirement does not become operative.

And here as I said the situation falls directly within the language which I have quoted from the Kesler case.

Now in addition to the attack on the statute under the Supremacy Clause, there were claims raised in the complaint under the Fourteenth Amendment and the Commerce Clause, and we made a motion to dismiss on the ground those claims were insubstantial.

The court as you see from the opinion held that the claims were unsubstantial and we say therefore that the fact that a three-judge court was actually convened and heard the case and ruled that the claims were unsubstantial, did not authorize the direct appeal to this Court because the cases have held that a single judge compares on the substantiality of the federal constitutional claims raised in the complaint, because otherwise any insubstantial claim could be made and entitle the pleader to a three judge court.

Potter Stewart:

[Inaudible] square with the first Avocado case.

Samuel A. Hirshowitz:

Yeah, well I was just going to say the only language which disturbed us on that point is language in the first Florida Lime case —

Potter Stewart:

Florida Lime Growers against Avocado.

Samuel A. Hirshowitz:

— which seems to say that the sufficiency of the complaint or the issue is not to be determined by the eventual resolution, but with the case which preceded that the Woolen’s case which we cited in our brief and which this Court said that the fact that a three-judge court was assembled and after a hearing rendered a final decree, did not authorize direct appeal to this Court.

The way we rationalized the trial or attempt to rationalize the Florida Lime case is that the — in the — in our case we made a motion to dismiss on the ground that the claims were insubstantial and that the fact the Judge Krocker, the District Judge assembled a three-judge and they ruled that the claims were insubstantial, did not authorize a direct appeal to this Court.

Now as I said, we are just as interested in the determination of this matter on the merits.

We’re just as interested as the appellants in having the packers sell their products in New York State and make them available to the consumers, but only on the conditions which would protect the public in New York State against deception and entitle them to information, which the state in it’s consumer protection program has determined that the consumers in New York State are entitled to.

Now these stuffed turkeys or stuffed poultry in general are advertised at say $0.50 a pound.

There is no segregation as between the bread which goes into the stuffing and turkey itself.

The housewife goes into the market and she is entitled to know how much turkey she is buying because that’s the standard that she would use in the dinner that she is preparing.

I can’t see any reasonable objection that the packers or anyone else could offer to giving the consumers of New York State that information.

Potter Stewart:

I didn’t understand General Hirshowitz that the appellant was making any claim that the New York regulation is unreasonable per se.

Samuel A. Hirshowitz:

Well during the course of a —

Potter Stewart:

But maybe I misunderstood.

Samuel A. Hirshowitz:

Well, during the course of the hearing before the three-judge court efforts were made to show that it would be impracticable to comply with New York law, but the proof as found by the three-judge court does not substantiate it.

It would take exactly a fraction of a minute to calculate and put this extra weight on the poultry which would indicate to the consumer what the net weight of the poultry is, in addition to the information that maybe required by the Federal Department of Agriculture.

Hugo L. Black:

Were there any attack [Inaudible] against the New York statute on the grounds that was [Inaudible] protect the industry, domestic poultry industry in New York?

Samuel A. Hirshowitz:

No, Your Honor, but some of the facts I intend to bring out would indicate that the ruling by the lower federal official and Department of Agriculture has at least subject to a great deal of scrutiny.

Hugo L. Black:

A great deal of scrutiny for what reason?

Samuel A. Hirshowitz:

Well, I intend to bring that out because as you will see from the facts developed in the record, it would be difficult to believe that the great doctrine of preemption, which is cited by the appellants would deprive people of New York of their right to have this information, additional to which —

Potter Stewart:

Now, General Hirshowitz what if, instead of the facts we have in this case, what if we had a final determination by the Department of Agriculture affirmed by a court that the Federal Statute prohibited the label which New York says it requires?

Now you wouldn’t have any question about what the result would be in that case, would you?

Samuel A. Hirshowitz:

No sir, but as we cite —

Potter Stewart:

Well, certainly the Federal Government would have a right to deprive the people of New York of what the commissioner says they’re entitled to, wouldn’t it?

Samuel A. Hirshowitz:

That would be after judicial process and we would naturally have a remedy in Congress to address ourselves to Congress if that were the case, but I just want to point out to you that all the steps that were taken by the two packers, Armour and Swift were without notice to New York and more than that, the individual who presumably caused the disapproval of the labels submitted — the applications for label approval submitted by Armour and Swift, he knew about the interest of New York State.

He knew about the interpretation by the New York State Official, yet he says in his testimony that officially the Department did not know about it.

So no notice was given to New York and Judge Friendly comments on this in his opinion.

Now in the —

William J. Brennan, Jr.:

Now, who would have this knowledge General — who would do you say had this knowledge?

Samuel A. Hirshowitz:

Mr. Howell, the —

William J. Brennan, Jr.:

Oh, the witness I mentioned earlier.

Samuel A. Hirshowitz:

Yes, the Department of Agriculture official.

William J. Brennan, Jr.:

What you say is that the record shows that he knew of New York’s position of some proceedings involving other practice?

Samuel A. Hirshowitz:

No, no, the interpretation arose as a result of a criminal charge against Swift & Company brought not by the State of New York or by the Commissioner or at their behest, but a prosecution by the City of New York instigated by the Commissioner of Markets who marshaled the evidence and prosecuted by the District Attorney of King’s County.

After that prosecution, the packers — the industry tried to get a bill enacted, which would do exactly what they hope to do by this litigation, exclude the right of the states who asked for this additional information.

William J. Brennan, Jr.:

To get that bill enacted where, in New York —

Samuel A. Hirshowitz:

It would be New York State legislature.

The bill was passed by the then legislature in 1963 legislature, but was vetoed by the governor as, generally speaking as harmful to the interests of the consumers.

It was after that, that they decided on this course which counsel has candidly set out of going through the motions of asking for this label approval, but this witness who appeared in the three-judge hearing Mr. Howell was also in court when the prosecution against Swift & Company was in the lower criminal court of New York City.

In addition to which he said that he had knowledge of the interpretation which was subsequently made after a public hearing by the Commissioner of Agriculture of the State of New York, held a public hearing at which he listened to the views of the industry and the views of consumer organization and then he reached this interpretation that he would require the additional information in any form.

Now we submit that there is no substantial basis to the appellant’s claim of preemption.

There is absent here in the Federal Act, any expression of intention of Congress to exclude the state from requiring that this information be made available to its consumer.

The rule expressed in the cases that — is that the express intention must be so positive that the two cannot stand together or be reconciled.

The recent cases on which this Court has upheld state action like the Florida Avocado case and Euron case contained the statement of these principles.

The appellants rely on Campbell against Hussey case.

In that case this Court found the expressed intention of Congress as supporting the argument of preemption and this differentiates the Florida Avocado case from the Campbell case.

This Court said in the Florida case that in Campbell Congress have declared uniform standards and inspection to be imperative for the protection of producers and the public interest.

In passing the Federal Tobacco Inspection Act, reference was also made there to repeated references in the legislative history to necessity for uniform standards.

This Court went on to say in the Avocado case that even though the Act involved there either as its purpose a policy of establishing minimum standards of Avocado’s, that language without law did not reveal a congressional design that federal marketing orders should displace all state regulation.

In our case, the explicit and stated policy of Congress was to guard as my friend has said against unwholesomeness in the interstate shipment of poultry.

In the entire stated purpose of the Act, there is no mention of any concern or interest in the establishment of weight standards for poultry.

Section 3, for instance of the Act, which is the declaration of policy says in part to prevent the movement in interstate or foreign commerce or in a designated major consuming area of poultry products which are unwholesome, adulterated or otherwise unfit for human food.

Samuel A. Hirshowitz:

No reference at all to any requirement for weight standard.

78 witnesses testified before the various congressional committees as to the necessity of the Federal Act, stressing poultry communicable diseases, some infecting poultry workers.

The only reference to weight in the entire Act is in Section 8 which specifies that the container upon its label should state, “The net weight or other appropriate measure of its contents.”

There is no discussion at all in the committee reports about weight, except a single reference in the committee report in discussing Section 8 and merely making the statement that it contained a reference to quantity.

It is claimed at the time net weight in Section 8 of the Act is indeed and beyond plausible dispute, a peripheral aspect of the Act, to which they dissenting opinion in the Florida Avocado case referred.

Appellants refer to Section 8(a) of the Act banning false or misleading matter on the label.

Nothing in that section of the Act excludes the state requirements of an additional truthful statement of the weight of the poultry as well as the total net weight required by the Federal Department.

On the contrary, the District Court found that the additional statement would make the impression conveyed by the total weight less misleading.

Relevant also is language in Section 18(b) of the Act that in carrying out the provisions of this Act, the secretary may cooperate with state agencies.

In sum, it appears that there is absent here any intention to interfere with the particular state requirement, stemming from the state’s regulation of weight measures, which as the opinion of the District court shows, goes back in New York to colonial times.

The official inspection mark on the poultry package required by Section 8 is simply inspected for wholesomeness.

I find no provision in the Act itself, requiring label approval by the Secretary.

The requirement for label approval is in the regulations and there is a section in the Act, which authorizes the Secretary to make regulation.

Appellants, however, seek to buttress their claim by reference to these regulations.

The regulations don’t change anything, the Act does not define net weight or other measure or its contents and neither does the regulations.

Assuming the validity of the prior label approval appearing in the regulations, any reference thereto to labeling is to ensure the appearance of the package — on the package of the information required by the Act, which is detailed in Section 8 and the absence of false or misleading information banned by the Act.

The regulations do not strengthen any claim of preemption or furnish any support for any ruling that the statutory words in Section 8, “Net weight or other measure of its contents,” exclude the furnishing of the additional information as to the weight of the poultry.

The assertion by the appellants of long standing departmental interpretation of the Act’s language as to net weight is not accurate.

It must be remembered that this Act was only enacted, the Federal Act was only enacted in 1957.

It appears in the record that quantity shipments of stuffed poultry by the appellants date from 1960.

The present controversy with the appellants arose two years later in 1962 and not criminal court proceeding to a trial court.

William J. Brennan, Jr.:

Does your New York regulation precede the federal regulation which you said was 1950 something?

Samuel A. Hirshowitz:

The New York regulation precedes it, but the interpretation by the Secretary which is under challenge follow the criminal conviction.

William J. Brennan, Jr.:

Yes, no, but New York had a regulation before the Federal Government entered this, is that it?

Samuel A. Hirshowitz:

They had a regulation, yes, which was — there is testimony in the record.

There is a county sealer in New York State in each county.

The Department of Agriculture has general supervision.

The county sealers and the City of New York, the Department of Markets and Flowers, the statute, the Department of Markets, the Commissioner of the Department of Markets that is sitting in New York, he read the statutes as Section 193, net weight of the poultry as meaning the net weight of the poultry exclusive of the stuffing and he brought this — or he instigated this prosecution.

Thereafter the hearings were held as I said by the Commissioner of Agriculture of the state as to whether he should formally adopt this interpretation and this was — I believe in the early part of 1963 or the latter part of 1962.

William J. Brennan, Jr.:

In connection with the Federal Act, did New York appear to represent to the Congress that it already had a regulation?

Samuel A. Hirshowitz:

No sir, because there would be no objection by New York state to the passage to the Act.

Consumer organizations in New York state as well as elsewhere would be fully in accord with the Act.

New York State I would imagine as having a such a substantial part of the population frankly, would be a heavy consumer of poultry and would probably, although the figures show that in the years to which I referred 1960 or 1963, I think the packers sold about one million pounds a year in New York State of stuffed poultry on New York State and possibly some of the other big states that might be a market for that.

William J. Brennan, Jr.:

Well, did New York appear to support the federal legislative?

Samuel A. Hirshowitz:

I do not know Your Honor.

The poultry inspection division, this is the division which subsequently disapproved the label submitted by Armour and Swift, the poultry inspection division in the same period approved a label calling for the three weights, not two weights, three weights — a statement of three weights submitted by the Connecticut fund for stuffed Cornish hens and the meat inspection unit of the Department of Agriculture at the same time, 1963, approved a label calling for Cornish hens which is also a combination.

And approving a label for Cornish hens, stuffed Cornish hens, the poultry unit said, “There would be no objection to showing the weights of the stuffing in the bird if they were shown separate from the net weight statement.”

So therefore, as I submit, the departmental history would appear to contradict the assertion in the brief of the appellants of a long standing policy of departmental interpretation of the term net weight.

Still more demonstrative of lack of any assistance in the regulations or in the departmental practice to the contention of preemption is the recognition by this very department, that additional state requirements are not displaced by the Federal Act and Regulations.

At the foot of each printed form of application, for label approval, appears the following sentence: Any approval of or comment concerning this labeling material or the weighting thereof, as contained in this notice must be understood to represent the attitude of this service only and does not excuse, failure to comply with other applicable federal or state laws or city or municipal regulation.

Where does that appear?

Samuel A. Hirshowitz:

It appears on page 161.

It was run into the record at the 161 and the Swift application to which my friend referred is on page 272.

The state requirement for additional information on a separate label as the appellant’s have admitted, acting under the Food and Drug Act was upheld in Savage against Jones and the subsequent case, the Corn Products Refining case.

In the Savage case, the opinion referred to the object of the Food and Drugs Act to prevent adulteration and misbranding.

After discussing the Federal Acts language against false or misleading material the Court said it is one thing to make a false or misleading statement regarding the article or its ingredients and it maybe quite another to give no information as to what the ingredients are.

In the present case, the state as has been stated by the appellants would be satisfied as in the Savage case, by a supplementary label or even by a tag attached to the bird merely stating additionally the weight of the bird.

This would remove any possibility that this additional information was part of the Federal Inspection Mark or had secured federal approval.

Furthermore, this would not require tampering with or removing the federally approved label, which was the basis for decision in the McDermott case referred to by the appellants.

After the McDermott case, this Court decided the Corn Products case to which I — which I’ve just mentioned and the Court there specifically upheld the right to require additional information on a state label under that Act.

Incidentally the appellants in the Amicus Association questioned the validity of the commissioner’s position that on authorizing this statement that a supplementary label or tag would comply with his interpretation of Section 193 of the New York State Agriculture Markets Law and they get into a discussion as to the validity of the interpretation under New York State Law, of the position of the Commissioner of Agriculture.

Judge Friendly in the three-judge opinion referred to it.

We originally in our answer invited him to seek a resolution to that question by going to the State Court first, but they declined the invitation.

At any rate, Judge Friendly held that the interpretation by the State Commissioner of Agriculture was a reasonable interpretation.

Appellants have referred during the course of this argument to the Cardell case, a case decided under the misbranding provisions of the Food and Drugs Act.

Their statements and their brief that it’s dispositive of the preemption point is in effect extravagant.

Court — the case simply held that the false statements in advertising accompanying the product was subject to prosecution under that section and the majority held that both were integral parts of the offering despite the time separation to which my friend referred.

Nothing in that case does anything to undercut the Savage and the Corn Products cases decided under that Act.

While it is not necessary for a decision here at this time.

We should point out that there is no showing that the Appellants could not regulate their manufacturing process, so that the tag or label could in fact be added in New York.

Samuel A. Hirshowitz:

Several alternative suggestions present themselves.

The weight of the poultry could be put on by an indelible stamp or the amount of stuffing regulated that was done by the shipper of stuffed Cornish hens who had an actual — who monitored the amount of stuffing that went into the bird.

The principal reliance, in effect, by the appellants has been to this rejection of the label approval submitted first by Swift in the middle of 1963 and immediately disapproved by the department federal official and subsequently in the latter part of August as they were contemplating this lawsuit they had Armour & Company also submit an application for label approval and cause it to be disapproved.

And so let me make clear that the application submitted in each of these instances by Armour and by Swift were for approval of a label — federal label containing the information requested by New York State.

No application was ever submitted by the appellants to the Federal Department of Agriculture for approval of a supplementary label or a tag conforming with New York’s requirements and there is no occasion to — at this time to predict what the Department of Agriculture would do, formerly if such an application had been made.

So that the argument that the disapproval by the lower echelon federal official establishes a conflict falls or fails because no application was actually ever submitted to the federal official complying with New York’s requirements.

Moreover, the application submitted by Swift & Company had contained a provision calling for information as to three ways and New York has explained only requires one additional point of information, the weight of the poultry without the stuffing.

Byron R. White:

Mr. Attorney General what if there had been an application filed for a label with the overall weight on it, plus the information that New York requires and it is turned down, what would New York —

Samuel A. Hirshowitz:

The first answer, it wasn’t done, therefore they can’t advantage of the disapproval.

But the second thing is, if it were done I’m just about to say that they were under a duty to do two things.

In first place knowing of the interest of New York State and the fact that Department of Agriculture officially did not know about the New York State’s interpretation and New York’s interest, they were under duty to disclose that, a) to the New York — to the Department of Agriculture, Federal Department of Agriculture officials; b) they were under a duty to advice New York State of the situation; and c) we claim they were under a duty to take the necessary steps to file a protest and secure a hearing at which New York State or other interested parties including consumers could well have been represented.

Byron R. White:

Well, Mr. Attorney General, assume that the hearing had been held and there had been a determination by the Secretary of Agriculture, that the only information to be permitted on the label was the overall weight of the bird, without the information New York required, would that be end of the matter as far as New York is concerned, except for an appeal to Congress?

Samuel A. Hirshowitz:

No, the section provides for the possibility of judicial review and —

Byron R. White:

Well, do you require Swift to seek to —

Samuel A. Hirshowitz:

If New York, yes, in view of the fact they did not disclose to New York State.

Byron R. White:

But they couldn’t — if they won before the — if they — if the Secretary said that you can’t have this information on it you would require them to appeal at the Court of Appeal.

Samuel A. Hirshowitz:

If they had advised New York State of the situation and New York State had appeared and been represented, I think New York State would have had right to have a judicial review of the decision of the department and the case would come to Court through the administrative process instead of coming hereon an injunction suit, which challenges allegedly the constitutionality of the statute.

But they did more than that and I think there was a lack of good faith, evident in these packers in not advising New York State and not advising officially the Department of Agriculture, the Federal Department of Agriculture of the interest of New York State.

And their motive for it was they were just going through with the motions to prepare for this litigation.

And in the record appears admissions by the witnesses produced by these packers that they never made any tests in their packing plans to determine whether the additional information would present any manufacturing problem at all.

Nor did the department of agriculture direct any test to be made to see whether it was practicable to do that.

When the application was denied the department, Federal Department of Agriculture, poultry inspection unit, used reasons which were established in the record in this Court by the testimony of the witnesses produced by the packers to be without any rational substance at all.

One reason was it would lead to confusion.

Second it said it might cause contamination.

All these reasons were explained as having no substance because as I have already said, it appeared that it would take less than a half a minute to add this additional information and secure the net weight of the poultry and actually 30 or 40 minutes.

This turkey or poultry is in the manufacturing process at a room temperature about 40 degrees.

So the fraction of a minute would have no deleterious affect at all.

The case here is somewhat unusual because of the fact that they were no adverse parties there.

You had an administrator — an application for approval to administrator by a person or a party who wanted the administrator to make the — to disapprove the application and as counsel has said they were happy with the decision of the administrator.

In such a situation, there is no true basis for a challenge to the constitutionality of the action of the state on the basis of this disapproval by the minor federal official.

Samuel A. Hirshowitz:

As I’ve said, while this business was going on, at the very time this business was going on, the federal unit was in the impossible position of having to approve two weight statements for Cornish and stuffed poultry, where the experience was favorable.

The record shows the experience was favorable, that there had been no consumer complaints or confusion or otherwise.

Nevertheless, when they were disapproving the application for label approval submitted by a Swift & Company and not to be inconsistent, they abruptly withdrew the approval of the label of the Cornish hen, the stuffed Cornish hens.

Furthermore the witness and the lower echelon official of the poultry inspection unit had conversations with the meat inspection unit, with the consequence, that in December 1963 at the commencement of this action that unit also caused the approval of the label for the Cornish hens to be withdrawn, indicating the special interest of this particular employee of the Department of Agriculture, which I said a little while ago should withstand scrutiny.

It is our argument that if the appellants desire to obtain a resolution of the assumed conflict, it was necessary for them to pursue the departmental review provisions of the Act.

That the issue tended by them as to the alleged conflict was not right for judicial intervention and we have relied on our brief on the per curiam opinion, in Arkansas Power and Light Company and the opinion of this Court in Myers against Bethlehem, particularly the Arkansas case which we think is appropriate in this instance.

The District Court in its opinion phrased it this way: “When the inconsistency hinges on a factual determination, a citizen desiring freedom from state regulation does not discharge his burden by obtaining a letter from a subordinate federal official at least when Congress has laid out a fact finding procedure as to which the state could be given notice and an opportunity to be heard.

At such a hearing, it is quite unlikely, said Judge Friendly, “that anyone would reasonably find that a separate statement of the weight of the unstuffed bird would be false or misleading.”

We note that the Solicitor General not only agrees with our position as respects preemption and the other constitutional claims advanced by the appellants, but also agrees with the District Court’s view just expressed and adds such additional arguments which are not contained in our brief as the public interest and a full development of the facts in which we fully join.

The responsive appellants is indeed a confession and avoidance, a confession that they wanted and welcomed a disapproval by the subordinate federal official, and an attempt to show that New York was not entitled to notice.

When this law — echelon official arbitrarily disposed of the matter and this is relied upon to ask for equitable relief against a state statute we submit the issue is in fact not ripe for such action until there is a complete factual record.

Since appellants will not in fact advise parties to the disapproval, the factual record could not be made without New York and any other public interest properly given an opportunity to present such facts.

And as I said furthermore since as the District Court found that no application had been made for approval of the label material in accordance with New York requirements, the question of conflict does not really arise in this case.

Appellants also relied upon the Commerce Clause and the District Court as I said held that the claim was insubstantial.

Appellants concede the right of the states to protect its people from fraud and deception especially in the field of weights and measures.

The case of Savage against Jones to which I referred previously, the Plumley case, all of the cases cited by us in our brief reject the Commerce Clause argument advanced by the appellants.

In the Euron case, this Court said that the Commerce Clause did not cut the states off from legislating under it’s police power even though the legislation might indirectly affect commerce.

The fact that out of state processes may be required to alter their processes in not unduly burdensome manner, as found by the District Court, there is no objection under the Commerce Clause to state regulation, especially as we have noted in the field of protection of the public in the area of weights and measures.

In the Florida Avocado case, this Court said that a state may impose upon imported food stuffs a higher standard demanded for its consumers.

The contention by the appellants in the Amicus Association that other states may impose other requirements, supports no Commerce Clause argument.

The District Court found that there was nothing in the record to show that the appellants could not prepare for sale in New York, stuffed poultry in sufficient numbers to satisfy New York’s requirement.

As we have pointed out the Federal Act contains no mandate for uniformity in this area.

Moreover, the possibility of contrary requirements banning the additional information in other states is as remote as laws banning compliance with requirements against discrimination referred to in the Colorado discrimination case.

We can’t anticipate that any state would ban the particular information required by New York State.

In any event, there is no proof of present conflict in the record.

Finally in this connection, we have pointed out there is likewise no proof that New York’s requirement could not be complied within New York itself at the point of sale by simply marking the poultry with an indelible mark, setting out the poultry’s weight or by using the amount of stuffing.

The Commerce Clause would not apply as held in the Armour against North Dakota case cited in our brief upon the principle that the Commerce Clause does not extend to interstate commerce after it comes to rest within the borders of New York state.

Finally, the claims under the Fourteenth Amendment, the District Court said were baseless.

Upon the record it was obvious that the state was legislating in a reasonable manner, in a traditional area involving the exercise of its police power.

The record showed that the proportions of stuffing in the bird could not be ascertained by the consumer in the absence of the information required by the New York interpretation.

Samuel A. Hirshowitz:

The substantial variations of the stuffing in the stuffed turkey processed by the appellants and the consequent need for state action was fully established in the record.

Furthermore there is no basis for any claim of discrimination, the requirement and the Commissioner’s interpretation is binding upon both domestic and out of state processes of stuffed poultry equally.

The failure to exclude TV dinners or a host of other ready-to-eat food products such as the pork and beans referred to by my adversary is on a rational basis.

They are sold as units.

Poultry, stuffed poultry and other poultry is sold by the pound, and of course the principle is, an accompanying principle that the state need not cover the whole area, they found the need for this particular type of regulation.

In the brief of the Amicus Association, they take a contrary position.

They say that if the Court approves the interpretation of New York law by the Commissioner, a horrible result would attach.

There would be chaos in the industry, because all these combination products would automatically become subject to the interpretation of the Commissioner.

Of course that’s not true.

The regulation specifically excludes those types of combination products.

[Inaudible]

Samuel A. Hirshowitz:

Well they say they haven’t — there is — and I believe that’s accurate although there are rumors that some stuffed poultry is being sold in New York upstate.

Mr. Justice Harlan: [Inaudible]

Samuel A. Hirshowitz:

No, they did not obtain any stay, I don’t think they applied for a stay, I’m note sure about that and they have voluntarily refused to avail themselves of the opportunity to take this process through to the Department of Agriculture by submitting additional labels complying with New York law and giving New York notice so that we could get the administrative process and Judge Friendly and speaking for the three-judge court held on that point there that the case was not right.

I couldn’t pass on the question of any possible conflict.

I have a note here that the — given to me by my associate that the Solicitor General himself is willing to state to the Court that the solicitor’s brief in support of the respondent is with the approval of the Federal Department of Agriculture.

Earl Warren:

Mr. Condon, you took your final five minutes questioning, and if you would like to sum up [Inaudible] time, you may.

William J. Condon:

Thank you Your Honor.

Mr. Chief Justice, may it please the Court.

There were one or two things that were opened by the Attorney General in his argument that may require at least mention.

One, the matter of the knowledge of the Department of Agriculture of the situation with respect to New York, as the Attorney General pointed out.

Mr. Howell who is Deputy Director of the poultry division testified on the subpoena by Swift & Company in the criminal prosecution in New York City in November of 1962.

He testified again at the trail of this action in 1964.

Now I’m sure that we all know that no federal official in the department of this kind is going to come to New York in response to a subpoena without the knowledge, official knowledge of his department, that the subpoena isn’t served and worked quite the same way on a federal official as it might someone else on the street.

The department did know and did know the problem and the approval was given to Mr. Howell to respond and testify on their behalf.

Somehow or other it appears that because the department didn’t get in touch with New York, that the Department and particularly Mr. Howell was being partial, perhaps partial in the Swift & Company or Armour and Company, I’m not sure which, but I think perhaps it ought to be mentioned that New York also was aware of the conflict and perhaps New York might have had some burden.

There are after all 49 other states and perhaps New York might have had some question or some burden or responsibility of being in touch with the federal people.

There is no indication that this was done either.

Now, the point was made again finally that these other combination products to which the Poultry Institute brief refers are not covered by the New York law and this simply isn’t true.

As long as they are not ready to eat, and that means cooked, handed to you so that you can eat them now, if they are combinations of meat, poultry or sea food, they are covered by the statute.

William J. Condon:

This confusion existed on the record and it was clarified in the cross examination and again the redirect examination of Mr. Madden at his testimony in the trial he was the defendant’s principal witness here.

One other point: there was reference made to the material that appears on the bottom of the application form.

This material was read and it says that this represents the attitude of this service only and does not excuse the compliance.

Now the question is, I suppose what does that mean?

The only answer to that, I don’t know what it means but in view of what’s happened in this lawsuit, we have a pretty good idea of what it does not mean.

It does not mean that the service having rejected your application is going to close its eyes if you try to put out a product with a label that doesn’t comply with what they’ve done.

Now, it might very well mean that the product can’t be sold if it’s adulterated and it might very well mean a number of other things, but it cannot mean that the service is turning its back on the mandate of Congress and not going to do what Congress has told them to do and that this doesn’t mean what the congressional act obviously seems to say that it does.

Abe Fortas:

Mr. Condon, can I ask you this question?

As I understand it the New York Statute and the Federal Statute are for present purposes about the same, that is to say the both require statement of net weight, is that correct?

William J. Condon:

Well, they both require a statement of net weight, I think the substantial difference is, the Federal Act calls for the net weight of the product, poultry product.

It defines poultry product to be, poultry plus anything else is packed with it, food.

The New York law requires net weight, but it defines net weight as being the net weight of the meat, poultry or sea food.

Abe Fortas:

Are you saying that the Federal Statute makes mandatory the ruling that was made in this case, that the administrative official Mr. Howell or whatever his name was, had no discretion.

William J. Condon:

Well, I think that’s at least a permissible interpretation.

This is one of the claims that was made in the letter that Dr. Lee wrote in commenting upon our application as a matter of fact.

Abe Fortas:

Well, take it my way for a minute so I can get your theory.

Now suppose that the two statutes provided only generally, that there must be on the label a statement of net weight.

Now absent any sort of interpretation either of the jurisdictions concerned, would it be your position that the federal statute supersedes the New York statute just on that state of facts?

William J. Condon:

Yes, yes sir.

Abe Fortas:

It would be?

William J. Condon:

Yes sir.

Abe Fortas:

In other words, it’s your position that in any area where the Federal Statute provides for labeling and provides for the statement of net weight on the label, and any state statute which provides for a statement of net weight on the label, is constitutionally invalid.

William J. Condon:

As applied certainly to that product, yes sir.

William J. Brennan, Jr.:

[Inaudible] primarily because, in this instance, in this statute required prior approval of the label.

William J. Condon:

I understood, Mr. Justice Fortas to be asking upon that basis, the prior approval.

Abe Fortas:

No, I’m glad to have you clarify your views.

My question did not include that.

William J. Condon:

It did not, I’m sorry sir, without that, and again now you are back to essentially the Food, Drug and Cosmetic Act situation.

Then I would say no, there is no necessary preemption and there is no necessary conflict.

No sir.

William J. Condon:

It would depend on the facts in a given situation, whether or not it would be or not.

Byron R. White:

This is your preemption end of your argument?

William J. Condon:

That’s correct.

William J. Brennan, Jr.:

May I ask one last question Mr. Condon?

I notice in the Solicitor General’s brief, a statement that dozens of witnesses testified in support of this federal legislation.

Do you happen to know whether anyone appeared from New York?

William J. Condon:

I do not, as far as I know, they did not, but I can’t say that they for sure.

Thank you.