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GENERAL MILLS v. FURNESS

July 2, 1974

GENERAL MILLS, INC., a corporation, et al., Plaintiffs,
v.
Betty FURNESS, Commissioner, Department of Consumer Affairs, City of New York, Defendant


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

Memorandum Opinion And Order

MOTLEY, District Judge.

 Plaintiffs, who are manufacturers and packagers of wheat flour, have brought this action for a declaratory judgment. Jurisdiction is based on 28 U.S.C. §§ 1331(a), 1332(a), 1337.

 Plaintiffs have requested injunctive relief against the Commissioner of Consumer Affairs, City of New York, to restrain the enforcement of Section 833-16.0 of the Administrative Code of the City of New York against retail distributors of their flour products.

 The ordinance makes it ". . . unlawful to sell or offer for sale any commodity or article of merchandise, at or for a greater weight or measure than the true weight or measure thereof. . . ."

 The essence of plaintiff's claim is that the city ordinance does not allow for reasonable weight variations resulting from inevitable losses of moisture and, therefore, violates Due Process and imposes a burden on interstate commerce. Plaintiffs also claim that the ordinance is preempted by the federal Fair Packaging and Labeling Act, 15 U.S.C. § 1451 et seq., and the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.

 The court, in an opinion dated February 22, 1974, ruled that the ordinance did allow for reasonable weight variations resulting from moisture loss. The court also ruled that the ordinance, as applied, did not deny plaintiffs their rights under the Due Process Clause and that the Commerce Clause does not bar all state and local regulation of weights and measures of packages which have been transported in interstate commerce. The court denied plaintiffs' motion for preliminary injunction and granted defendant's motion for summary judgment, in part. The court limited trial of the permanent injunction to the question whether the city ordinance unnecessarily burdens interstate commerce. It was ruled that plaintiffs would have to prove first that the ordinance, as applied, imposed standards substantially more stringent than those of applicable federal laws and that the municipal requirements exceeded the limits necessary to vindicate legitimate local interests, unreasonably favored local producers, or constituted an illegitimate attempt to control the conduct of packagers beyond the borders of New York State. Florida Avocado Growers v. Paul, 373 U.S. 132, 154, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963).

 The trial of the permanent injunction was concluded on May 1, 1974. The court at that time denied plaintiffs' motion for a permanent injunction and granted defendant's motion to dismiss the complaint for the reasons herein.

 It appears that the city ordinance is substantially more stringent than the applicable federal statutes, as applied. Both the city ordinance and federal regulation permit reasonable variations caused by loss of moisture during the course of good distribution practice. *fn1"

 However, plaintiffs offered testimony that federal inspectors do not examine packages on retailers' shelves. (Testimony of Malcolm Jensen). Since much of the moisture loss occurs after the packages leave the manufacturers' plants, examinations by city inspectors conducted at retail stores are likely to result in discoveries of moisture losses which federal inspectors do not detect.

 Nevertheless, plaintiffs have not shown that the city ordinance is unnecessarily burdensome. There has been no showing that the ordinance's enforcement unreasonably favors local producers and plaintiffs have not shown that the municipal requirements exceed the limits necessary to vindicate legitimate local interests.

 In view of a municipality's interest in regulating weights and measures, "one of the oldest exercises of governmental regulatory power," Swift & Company v. Wickham, 230 F.Supp 398, 402 (S.D.N.Y.1964) (three-judge court), aff'd, 364 F.2d 241 (2d Cir. 1966), cert. denied, 385 U.S. 1036, 87 S. Ct. 776, 17 L. Ed. 2d 683 (1967), a city must be afforded wide discretion in determining what variations from stated weights are reasonable.

 Plaintiffs' principal argument is that defendant, in issuing violations against retailers, mechanically applies a table of "unreasonable minus or plus errors" contained in a handbook prepared by the U. S. Department of Commerce, National Bureau of Standards, (Handbook 67, National Bureau of Standards, Exhibit A, attached to Answer). Plaintiffs contend that the table was not intended to apply to weight variations resulting from moisture losses and, therefore, does not make adequate allowance for such losses. However, it is not enough to show that defendant applies the table in a manner contrary to the intent of the handbook's author. The question, for purposes of the Commerce Clause, is whether the city's requirements exceed the limits necessary to vindicate its interest in protecting consumers from misleading labeling practices.

 The handbook has no binding effect on states or municipalities since it merely describes "a method for controlling various types of pre-packaged commodities." (Handbook 67, p. 1). The question is whether the city is acting reasonably when it concludes that variations of the magnitude described in the table are ordinarily unjustified, bearing in mind that the ...


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