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L & L STARTED PULLETS, INC. v. GOURDINE

July 13, 1984

L & L STARTED PULLETS, INC., AVIAN BATES FARMS, INC., MOUNTAIN PRIDE FARMERS, INC., a wholly owned subsidiary of INTERCOUNTY FARMER CO-OPERATIVE ASSOCIATION, a New York cooperative association, class plaintiffs, for themselves and on behalf of a class similarly situated and THE GRAND UNION COMPNAY, a Delaware Corporation, Plaintiffs, SIMON P. GOURDINE, as COMMISSIONER of Department of Consumer Affairs of City of New York, and The City of New York, Defendants.


The opinion of the court was delivered by: SOFAER

MEMORANDUM OPINION AND ORDER

ABRAHAM D. SOFAER, D.J.:

 Three of the four "named" plaintiffs in this action are New York corporations which own and operate egg farms in Sullivan County, within the Southern District of New York. They are allegedly members of a class in excess of 100 members, each member of which owns and operates an egg plant, as approved by the United States Department of Agriculture (hereinafter "USDA"), located in the states of New York, New Jersey, Connecticut, and Pennsylvania. The Grand Union Company is a multistate Delaware Corporation that sells class members' eggs to the consuming public. Plaintiffs and defendants have crossmoved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The material facts are not in dispute and for the reasons that follow defendants' motion is granted.

 I. The Federal Scheme of Regulation.

 Plaintiffs' eggs are produced at plants subject to federal inspection pursuant to the United States Agriculture and Marketing Act of 1946. (7 U.S.C. § 1621 et seq.) Section 1622(h) of the Act authorizes the Secretary of Agriculture to establish a program of inspection, certification, and identification of the class, quality, quantity, and condition of agricultural products. It also provides that any official certificate or mark issued under the authority of the USDA "shall be received by all . . . courts of the United States as prima facie evidence of the truth of the statements therein contained." (7 U.S.C. § 1622(h)) The Act specifically provides, however, that no person is required to use the service authorized by this subsection. Regulations have been promulgated to implement this voluntary federal inspection program and are codified in 7 C.F.R. Part 56, in which a table with minimum net weight requirements for each class of eggs is set forth. (7 C.F.R. § 56.218) The regulations also provide, in relevant part, that "compliance with the Regulations of [7 C.F.R. Part 56] shall not excuse failure to comply with any federal, state, or municipal applicable laws or regulations," 7 C.F.R. 56.8 even though state officials (including the defendants in this case) have the right to participate in the grading process at all official plants.7 C.F.R. § 56.6.

 Federal law governing inspection and labeling of plaintiffs' eggs is contained in three additional sources. The Federal Food Drug and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., deals with various aspects of the marketing of food products, including shell eggs. Section 343, entitled "misbranded food," requires food in package form to bear a label containing the name and place of business of the manufacturer, packer or distributor; and an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count. Reasonable variations from the stated quantity of the contents, caused by loss or gain of moisture during the course of good distribution practice, are allowed. (Kutzbach Affidavit PP37-38). The Fair Packaging and Labeling Act, 15 U.S.C. January 3, 1984, §§ 1451-1461, prescibes the placement, form, and contents of statements of quantity on the labels of packaged goods, including eggs. Section 1461, entitled "Effect upon State Law" states:

 It is hereby declared that it is the express intent of Congress to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for the labeling of the net quantity of contents of the package of any consumer commodity covered by this chapter which are less stringent than or require information different from the requirements of section 1453 of this title or regulations promulgated pursuant thereto. 15 U.S.C. § 1461.

 Finally, the Shell Egg Graders Handbook of the Poultry and Dairy Division, Food Safety and Quality Service, U.S. Department of Agriculture, contains detailed information on the technical aspects of the voluntary egg inspection program, and states that it is "the responsiblity of management to pack eggs which will meet grade requirements at destinations." (Defendants' 3(g) Statement P13)

 USDA inspectors weigh and grade plaintiffs' eggs at plaintiffs' plants.When eggs are found to be in compliance with USDA requirements, an offical seal is affixed to each inspected carton. (7 C.F.R. § 56.36). The eggs are weighed and graded by "continuous grading" performed on a resident basis. (7 C.F.R. § 56.52) This means that at least one USDA inspector is present at each of the plaintiffs' respective plants at all times. The costs of this service to the Department of Agriculture are reimbursed in full by each plaintiff. (7 C.F.R. § 56.52) After plaintiffs' eggs are inspected, graded, weighed, and stamped they are sold and shipped in interstate commerce to various distributors and retailers, some of which are in the City of New York, including the plaintiff Grand Union. All of plaintiffs' eggs travel through the state of New Jersey en route from plaintiffs' official plants to the City of New York. (Batinkoff Affidavit P(K)) Under the federal scheme any interested party dissatisfied with the determination by a grader of the class, quality, quantity, or condition of any product may request a review of the grader's decision by the grader's immediate supervisor. (7 C.F.R. §§ 56.60. 56.61)

 II. The State/City Scheme of Regulation.

 Pursuant to Chapter 64 of the New York City Charter (§ 2203(b)), the Commisioner of Consumer Affairs is empowered to enforce all laws regarding weights and measures. The majority of these laws enforced by the Commissioner of Consumer Affairs are found in Chapter 36, Title A of the Administrative Code of the City of New York (§ 883-1.0 et. seq.), known as the "City Department of Markets Law." Section 883-16.0 of the City Department of Markets Law forbids the sale of shortweight products, including eggs. The Commissioner of Consumer Affairs has adopted regulations establishing minimum weights for various grades of eggs, in accordance with his authority under § 833-3.1(a) of the City Department of Markets Law. (Kutzbach Affidavit PP6-9)

 The City regulations also contain a table incorporating the standard terms, weights, and sizes to be met in grading eggs. (Id. P9) In determining whether eggs are shortweight, the Department of Consumer Affairs permits an allowance for moisture loss which may occur during the course of good distribution practice. The regulations describe an "unreasonable minus error" below stated net weight at which a package of one dozen eggs is considered in violation as a matter of law. A package of one dozen eggs labeled as "small", "medium", or "large" is considered in violation by the Department of Consumer Affairs only if it is 6/16 of an ounce or more below the required weight for the labeled weight class. A package of one dozen eggs labeled as "extra large" or "jumbo" is considered in violation by the Department of Consumer Affairs only if it is 7/16 of an ounce or more below the required weight for the labeled weight class. (Rosenthal Affidavit P5).

 In addition to the power conferred upon the Commissioner of Consumer Affairs by the City Department of Markets Law, the Commissioner is empowered to enforce certain state laws relating to the regulation of egg weights in the City of New York. Specifically, he is empowered to enforce the provisions of Article 16 of the New York Agriculture and Markets Law, known as the "State Weights-and-Measures Law", and the rules and regulations promulgated thereunder. (Kutzback Affidavit PP10-13). Section 194(1) of the State Weights-and-Measures Law, entitled "False labels", proscribes the use and sale of false labels to describe the products which are being offered for sale. Regulations implementing the State weights and measures law also permit "reasonable variations [from stated net weight] caused by loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice." See New York Code of Rules and Regulations (N.Y.C.R.R.) 221.10.

 At least two factors cause packaged eggs to be found short in weight. First, moisture loss causes fresh eggs to lose weight progressively after laying. Refrigeration can lessen but not eliminate this shrinkage during transit and storage. Second, egg cartons are not sealed and consumers switch eggs from cartons containing for instance medium sized eggs, and replace them with jumbo sized eggs. (Complaint P13). As ...


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