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L & L Started Pullets Inc. v. Gourdine

May 1, 1985

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 COMPANY, A DELAWARE CORPORATION, PLAINTIFFS-APPELLANTS,
v.
SIMON P. GOURDINE, AS COMMISSIONER OF DEPARTMENT OF CONSUMER AFFAIRS OF CITY OF NEW YORK, AND THE CITY OF NEW YORK, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the Southern District of New York, Abraham D. Sofaer, Judge, dismissing complaint contending that city and state regulation of egg sizes was arbitrary and unreasonable and contrary to supervening federal law. See 592 F. Supp. 367 (1984).

Timbers, Newman, and Kearse, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Plaintiffs L & L Started Pullets, Inc., Avian Bates Farms, Inc., Mountain Pride Farmers, Inc. (collectively the "producer plaintiffs"), and The Grand Union Company appeal from a judgment of the United States District Court for the Southern District of New York, Abraham D. Sofaer, Judge, dismissing their complaint for, inter alia, declaratory and injunctive relief prohibiting defendants Simon P. Gourdine and the City of New York State laws and regulations governing minimum weight requirements for various classes of shell eggs sold in New York City on the ground that those regulations are preempted by federal laws and constitute an impermissible burden on commerce. The district court granted the City's motion for summary judgment on the ground that the federal laws were not intended to preempt local regulation and that the City's practice of permitting deviation from published minima to allow for weight loss during shipment negated any conflict with the federal regulatory scheme and any undue burden on commerce. On appeal, plaintiffs renew their constitutional attacks on the City's regulations and contend that the case should not have been decided on summary judgment. We disagree and affirm the judgment of the district court.

I. BACKGROUND

A. The Published Regulatory Schemes

The producer plaintiffs' eggs are produced at plants subject to a voluntary federal inspection program pursuant to the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621, et seq. (1982 & Supp. 1985). Regulations promulgated pursuant to this statute set forth minimum net weight requirements for each class of eggs but provide that "compliance with [these] regulations ... shall not excuse failure to comply with any other Federal, or any State, or municipal applicable laws or regulations." 7 C.F.R. § 56.8 (1985). The Shell Egg Graders Handbook of the Poultry and Dairy Quality Division, Food Safety and Quality Service, United States Department of Agriculture ("USDA"), contains detailed information on the technical aspects of the voluntary inspection program and states that it is "the responsibility of management to pack eggs which will meet grade requirements at destination." Id. § 11, at 1.

In addition, the producer plaintiffs' eggs are governed by (1) the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301, et seq. (1982 & Supp. 1985), which, inter alia, requires food in packaged form to bear a label stating accurately the quantity of the contents in terms of weight, measure, or numerical count; the statute and a regulation promulgated thereunder permit reasonable variations from the stated quantity of the contents caused by, inter alia, loss or gain of moisture during the course of good distribution practice, see 21 U.S.C. § 343(e); 21 C.F.R. )§ 101.105(q) (1984); and (2) the Fair Packaging and Labeling Act, 15 U.S.C. § 1451, et seq. (1982 & Supp. 1985), which prescribes the placement, form and contents of a label's statement of the quantity of packaged goods, and which by its terms supersedes all local regulation that is less stringent or requires different information.

The Agriculture & Markets Law of the State of New York prohibits the false labeling of packaged goods, see N.Y. Agric. & Mkts. Law § 194 (McKinney Supp. 1984-1985), and a regulation promulgated thereunder provides, in pertinent part, as follows:

(b) For meats, meat food products and poultry, the statement of net quantity of contents, as it is shown on a label, shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packaging substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.

1 N.Y.C.R.R. Part 221.10(b) (1984).

The Administrative Code of the City forbids the sale in New York City of shortweight products, including eggs, see New York, N.Y., Admin. Code ch. 36, tit. A, § 833-16.0 (1977), and the City's Commissioner of Consumer Affairs has published regulations adopting as the City's minimum net weight requirements for various grades of eggs the minimum requirements established by the USDA.

B. The Present Lawsuit

One factor that may cause packaged eggs to be found short in weight is that eggshells, though impervious to outside moisture, permit the escape of air, other gases, and moisture from within. The loss of these fluids causes fresh eggs to lose weight progressively after they are laid. ...


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