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CARL AHLERS v. CITY NEW YORK ET AL. (04/24/69)

SUPREME COURT OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.41301 <http://www.versuslaw.com>; 300 N.Y.S.2d 428; 59 Misc. 2d 634 April 24, 1969 CARL AHLERS, INC., ET AL., PLAINTIFFS,v.CITY OF NEW YORK ET AL., DEFENDANTS Joseph Winston for plaintiffs. J. Lee Rankin, Corporation Counsel (James M. Brachman and Susan Rosenfeld of counsel), for defendants. Bernard Nadel, J. Author: Nadel


Bernard Nadel, J.

Author: Nadel

 This is an action to have sections 81.48 and 81.49 of the New York City Health Code declared unconstitutional.

In April, 1967 there was an outbreak of salmonellosis in the City of New York, which was traced to a frozen dessert that contained an unpasteurized egg product. On November 16, 1967 the New York City Health Code was amended as follows: "§ 81.48 Broken out eggs; liquid or frozen; pasteurization required

"No broken out liquid or frozen eggs whether mixed or separated as yolks or whites, with or without salt or sugar added, shall be brought into, produced, held, sold or offered for sale in the City of New York unless they have been pasteurized or treated so as to destroy all viable salmonella microorganisms in accordance with the regulations promulgated by the Secretary of Agriculture of the United States pursuant to the authority contained in the Agricultural Marketing Act of 1946, 7 U. S. C. 1621, et seq. or by any State governmental agency, provided that the regulations of such agency are, in the opinion of the Department, equivalent to the aforesaid regulations of the Secretary of Agriculture of the United States.

"Notes: This section is new. It was added by resolution adopted on November 16, 1967."

"§ 81.49 Broken out eggs; labeling

"No broken out liquid or frozen eggs shall be brought into the City or received in any food establishment unless the container is labeled or marked with indelible ink to indicate the date when, and the place where, the eggs were broken, together with the name of the owner of the egg breaking establishment or the name and address of the person from whom such eggs were broken out, the word 'pasteurized' and the inspection legend of the United States Department of Agriculture or of the State governmental agency under whose supervision such eggs were pasteurized in accordance with Section 81.48.

"Notes: This section was amended by resolution adopted on November 16, 1967, which added the words 'liquid or frozen' and the phrase 'the word * * * Section 81.48.'

"Resolved further, That this resolution shall take effect July 1, 1968." (The City Record, Dec. 8, 1967, p. 7940.)

The United States Secretary of Agriculture, pursuant to authority in subdivision (h) of section 1622 of title 7 of the United States Code provides a service for voluntary continuous inspection of egg products, and the placing of a legend upon said products indicating that they have been inspected and processed under the supervision of a United States Department of Agriculture licensed Inspector. Subdivision (h) of section 1622 specifically provides, "except that no person shall be required to use the service authorized by this subsection".

The United States Food and Drug Administration, under statutory authority in sections 341 and 371 of title 21 of the United States Code providing for standards of identification, has issued a standard of identity for liquid and frozen eggs in part 42 of title 21 of the Code of Federal Regulations (as amd. March 19, 1966, 31 Federal Register 4677). Section 42.10 covers liquid eggs and section 42.20 covers frozen eggs. These sections require that liquid and frozen eggs be "pasteurized or otherwise treated to destroy all viable Salmonella microorganisms."

Plaintiffs, wholesale egg dealers, ship liquid and frozen eggs in interstate and intrastate commerce. Plaintiff Ahlers imports liquid and frozen eggs from England and ships said egg products, in the original cans, throughout the United States. Plaintiffs testified that there is a price differential of at least 5 cents per pound between legended and nonlegended liquid and frozen eggs. The court notes, however, that, among the numerous exhibits, there are future delivery contracts of plaintiff Ahlers which provide for an additional 2 cents to 2 1/2 cents per pound, if plaintiff has to comply with the New York City legending requirement.

The New York City Health Code mandates continuous inspection and legending of liquid and frozen eggs in accordance with the regulations promulgated by the United States Secretary of Agriculture, or by any State governmental agency whose regulations, in the opinion of the New York City Health Department, are equivalent to the regulations of the United States Secretary of Agriculture. There is no evidence that the New York City Health Department has approved any State governmental agency regulations. None of the States mandate the use of the service provided by the United States Secretary of Agriculture pursuant to section 1621 et seq. of title 7 of the United States Code.

Plaintiffs contend that sections 81.48 and 81.49 of the New York City Health Code interfere with, burden and discriminate against interstate commerce and that Congress, by providing a standard of identity for liquid and frozen eggs and offering a service, for continuous inspection and legending of egg products, which is voluntary, not mandatory, has pre-empted the field. Plaintiffs ...


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