General Mills, Inc. v. Jones

Decision Date29 October 1975
Docket Number73--3583,Nos. 74--1051,s. 74--1051
PartiesGENERAL MILLS, INC., a corporation, et al., Plaintiffs-Counterdefendants-Appellants, v. Joseph W. JONES, as Director of the County of Riverside Department of Weightsand Measures, Defendant-Counterclaimant-Appellee. GENERAL MILLS, INC., a corporation, et al., Plaintiffs-Counterdefendants-Appellees, v. Joseph W. JONES, as Director of the County of Riverside Department of Weightsand Measures, Defendant-Counterclaimant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Before BROWNING and TRASK, Circuit Judges, and RICH, * Judge, United States Court of Customs and Patent Appeals.

RICH, Judge:

This suit was brought by the three plaintiff corporations, General Mills, Pillsbury, and Seaboard Allied Milling, hereinafter termed 'the millers,' to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail. Plaintiffs also seek declarations under 28 U.S.C. § 2201 and § 2202 that these statutes and regulations are preempted by federal law and that the means of enforcement employed, off-sale orders under Cal. Business and Professions Code § 12211, violated the due process clause of the Fourteenth Amendment, unreasonably burdened interstate commerce, and were imposed in violation of California law. The millers requested a three-judge district court pursuant to 28 U.S.C. § 2281. 1 Defendant Jones, as Director of the County of Riverside Department of Weights and Measures, is the official responsible for the enforcement of state weights and measures laws in his county. Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as the millers alleged that a case or controversy arising under the laws or Constitution of the United States involving more than $10,000 was presented; the existence of the jurisdictional amount is not disputed.

The district court, in an unreported memorandum and order, attached hereto as an Appendix, granted in part the relief requested, and the parties filed cross-appeals from the judgment. We have jurisdiction of these appeals under 28 U.S.C. § 1291.

This case is a companion to Rath Packing Co. v. Becker, 530 F.2d 1295, etc decided concurrently herewith. For the sake of brevity in this opinion we shall refer at times to our opinion in Rath.


This case concerns the packaging and weighing of flour sold to consumers for home use. The millers manufacture, package, label, and distribute in interstate commerce wheat flours, which are within the definition of 'food' in the federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., and are considered 'consumer commodities' under the federal Fair Packaging and Labeling Act (FPLA), 15 U.S.C. §§ 1451--1461.

Packaged flour is hygroscopic, and gains or loses moisture depending on the ambient humidity, unless packaged in airtight containers. If the relative humidity of the surrounding air is less than 60%, flour loses moisture, and hence weight. The converse is true at relative humidities above 60%. During the course of good distribution practices the ambient relative humidity is often less than 60%, and the packages of flour often lose weight. At the time the flour was packed, it contained 13--14% water by weight, which is within the identity standard for flour promulgated by the Secretary of Health, Education, and Welfare pursuant to 21 U.S.C. § 341 in regulations set forth at 21 CFR 15.1. Jones conceded at argument before the district court that the compliance of the packages of flour with the federal weight labeling standards discussed infra when they left the millers' plants was not a material issue of fact. We take this to mean that, for the purposes of this case, the millers' flour was correctly labeled as to net weight under federal law when it left their plants.

Federal Statutes and Regulations

The federal statutory provisions covering the labeling of flour are found in the FDCA and the FPLA. Section 403 of the FDCA, 21 U.S.C. § 343, provides:

A food shall be deemed to be misbranded--

(e) If in package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (2) of this subsection reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Secretary.

In 21 CFR 1.8b(q) the Secretary purported to implement the proviso:

(q) The declaration of net quantity of contents shall express an accurate statement of the quantity of contents of the package. Reasonable variations caused by loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.

Under the FPLA, Section 3, 15 U.S.C. § 1452, provides:

(a) It shall be unlawful for any person engaged in the packaging or labeling of any consumer commodity (as defined in this chapter) for distribution in commerce, or for any person (other than a common carrier for hire, a contract carrier for hire, or a freight forwarder for hire) engaged in the distribution in commerce of any packaged or labeled consumer commodity, to distribute or to cause to be distributed in commerce any such commodity if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to the provision of this chapter and of regulations promulgated under the authority of this chapter.

Section 4 of the FPLA, 15 U.S.C. § 1453, contains the FPLA's labeling standards:

(a) No person subject to the prohibition contained in section 1452 of this title shall distribute or cause to be distributed in commerce any packaged consumer commodity unless in conformity with regulations which shall be established by the promulgating authority pursuant to section 1455 of this title which shall provide that--

(2) The net quantity of contents (in terms of weight, measure, or numerical count) shall be separately and accurately stated in a uniform location upon the principal display panel of that label * * *.

The FPLA is tied to the FDCA by Section 7 of the FPLA, 15 U.S.C. § 1456:

(a) Any consumer commodity which is a food, drug, device, or cosmetic, as each such term is defined by section 321 of Title 21, and which is introduced or delivered for introduction into commerce in violation of any of the provisions of this chapter, or the regulations issued pursuant to this chapter, shall be deemed to be misbranded within the meaning of sections 331 to 337 of Title 21 * * *

California Laws and Regulations

The California regulatory scheme depends upon two provisions of the California Business and Professions Code. Section 12211 of the Code provides in material part:

Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law.

Any such rule or regulation, or amendment thereof, shall be adopted and promulgated by the director in conformity with the provisions of * * * (various sections) of the Government Code; provided, that the average weight or measure of the packages or containers in a lot of any such commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package, and provided further, that said rules or regulations applicable to food, as defined in Section 26450 of the Health and Safety Code, insofar as possible, shall not require higher standards and shall not be more restrictive than regulations, if any, promulgated by the Department of Health, Education, and Welfare, Food and Drug Administration, under the provisions of the Federal Food, Drug and Cosmetic Act.

Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented. (Emphasis added.)

Section 12607 of the Business and Professions Code, on which Jones also relies, provides in material part:

Whenever a consumer commodity is offered for sale, exposed for sale or sold without a statement of net quantity appearing thereon * * *, the sealer shall in writing order the commodity off sale and require that a correct statement of net quantity be placed on the commodity before the same may be released by the sealer.

The regulations implementing Sections 12211 and 12607 are in 4 Cal. Administrative Code ch. 8, subch. 2, as in Rath. The weighing and off-sale procedures described in our Rath opinion as applicable to bacon also apply to the flour herein, except, of course, that the tare in this case is the weight of an empty paper flour bag.

Proceedings Below

At various times from October to December 1972, inspectors under Jones' supervision examined at Riverside County food distributors bags of flour manufactured and packed by the millers and, finding that bags in certain lots were short weight under the California statutes and regulations described, supra, ordered those lots of flour off sale. Jones ordered additional lots of flour off...

To continue reading

Request your trial
8 cases
  • People v. Rath Packing Co.
    • United States
    • California Court of Appeals Court of Appeals
    • October 4, 1978 such regulation as is consistent with the applicable federal law discussed above. As noted by the court in General Mills, Inc. v. Jones (9th Cir. 1975) 530 F.2d 1317, 1322 (a companion case to the federal action discussed herein which dealt with the application of California's net weight......
  • Jones v. Rath Packing Company 1976
    • United States
    • U.S. Supreme Court
    • March 29, 1977
    ...would not be comparing packages that contain identical amounts of flour solids and hence would be misled. Pp. 532-543. 530 F.2d 1295 and 530 F.2d 1317, Argument commenced by Loyal E. Keir, Riverside, Cal., for the petitioner and continued by Allan J. Goodman, Los Angeles, Cal., for the Stat......
  • In re Surface Mining Regulation Litigation, 78-162.
    • United States
    • U.S. District Court — District of Columbia
    • August 24, 1978
    ...20 The Courts of Appeals also have upheld prehearing deprivations in exceptional circumstances. E. g., General Mills, Inc. v. Jones, 530 F.2d 1317, 1323 (9th Cir. 1975), aff'd sub nom., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) (cessation of sales of mislabeled foods); Sink v. Mort......
  • People v. Rath Packing Co., Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • July 18, 1978 such regulation as is consistent with the applicable federal law discussed above. As noted by the court in General Mills, Inc. v. Jones (9th Cir. 1975) 530 F.2d 1317, 1322 (a companion case to the federal action discussed herein which dealt with the application of California's net weight......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT