Lumbard, Chief Judge, and Moore and Feinberg, Circuit Judges.
Following a decision by the United States Supreme Court that it lacked jurisdiction on a direct appeal because the case was not properly one for a three-judge district court, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965), appellants Swift & Company, Inc. (Swift) and Armour and Company (Armour) urge this court to reverse the decision of the district court for the Southern District of New York which dismissed appellants' suit for a declaratory judgment to enjoin New York's Commissioner of Agriculture and Markets from interfering with appellants' sales of stuffed turkeys in interstate commerce. Appellants contend that enforcement of New York's labeling requirements against their shipments of turkeys would violate the Supremacy Clause of the United States Constitution in light of federal regulation under the Poultry Products Inspection Act of 1957, 21 U.S.C. §§ 451-469. The opinion below was written by Circuit Judge Friendly for the three-judge panel, and District Judge Croake individually arrived at the same conclusion. 230 F. Supp. 398, 410. As a timely appeal to this court was held in abeyance, pending possible review by the Supreme Court, the appeal is properly before us. 28 U.S.C. § 1291. See Turner v. City of Memphis, 369 U.S. 350, 82 S. Ct. 805, 7 L. Ed. 2d 762 (1962). We affirm.
Swift and Armour pack frozen stuffed turkeys in Minnesota and Wisconsin and ship them into New York for sale to retailers who resell them to consumers. The turkeys are labeled at appellants' processing plants outside New York State to show the total weight of the stuffed bird. The labels were approved (in advance) by the Administrator of the Consumer and Marketing Service of the United States Department of Agriculture (Administrator) as satisfying the requirements of Section 8 of the Poultry Products Inspection Act:
(a) * * * Each immediate container of any poultry product inspected under the authority of this chapter and found to be wholesome and not adulterated shall at the time such product leaves the official establishment bear, in addition to the official inspection mark, * * * the net weight or other appropriate measure of the contents, [etc]. 21 U.S.C. § 457.
The labels do not show the net weight of the unstuffed turkey.
Section 193(3) of New York's comprehensive Agriculture and Markets Law, 2B McKinney's Consol.Laws (1965 Supp.), provides:
All food and food products offered for sale at retail and not in containers shall be sold or offered for sale by net weight, standard measure or numerical count under such regulations as may be prescribed by the commissioner [of Agriculture and Markets].
Though the phrase "net weight" appears in both statutes, the Director of the Bureau of Weights and Measures of the New York Department requires a label on stuffed turkeys to show the net weight both of the unstuffed and of the stuffed bird. This administrative interpretation is within the Commissioner's authority under the New York Act. See generally Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104, 60 N.E.2d 825 (1945).
As the state had threatened to prevent sale of their turkeys in New York unless labels showing the net weight of the stuffed and unstuffed birds were affixed, appellants applied in mid-1963 to the United States Department of Agriculture for federal approval of labels which would satisfy the New York requirement. The submitted labels were rejected by the head of the Poultry Products Section of the Inspection Branch of the Poultry Division of the Department's Consumer and Marketing Service.
The federal statute, 21 U.S.C. § 457(b), and the regulations, 7 C.F.R. § 81.130(c) (1966), permitted an appeal to the Administrator from the Poultry Division's rejection of appellants' proposed labels. Under these provisions, appellants could have requested a hearing, and could have appealed an adverse decision by the Administrator to a United States Court of Appeals. Rather than seek such administrative relief, appellants brought this action to have the New York statute and regulations declared unlawful and to enjoin their enforcement.
The complaint alleged that the New York law violated the Supremacy Clause because Congress in the Poultry Products Inspection Act "exercised its power to the fullest with regard to poultry and poultry products," and, in the alternative, because the New York provisions were in direct conflict with the federal statute and regulations as interpreted.*fn1 After a three-day trial and the submission of briefs, the district court dismissed the complaint. It held that Congress through the Poultry Products Inspection Act did not "oust all weight regulation by states into which federally inspected poultry or poultry products are shipped," and that plaintiffs had failed to establish an irreconcilable conflict between the New York and federal statutes and regulations.
Appellants contend that the Poultry Products Inspection Act is a "broad comprehensive system of inspection and regulation of poultry and poultry products moving in interstate commerce," that the labeling portions of this legislation are an essential and integral part of the system, and that state laws additionally regulating the labeling of poultry products are therefore preempted. In treating this question, we begin with the Supreme Court's caution that, "Federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons -- either that the nature of the regulated subject matter permits ...