National Broiler Council v. Voss

• Decision Date: 08 April 1994
• Docket Number: Civ. No. S-93-1882 DFL JFM.
• Citation: 851 F. Supp. 1461
• Court: U.S. District Court — Eastern District of California
• Parties: NATIONAL BROILER COUNCIL, et al., Plaintiffs, v. Henry J. VOSS, Director, California Department of Food and Agriculture, Defendant, and California Poultry Industry Federation, Intervenor.

851 F. Supp. 1461

NATIONAL BROILER COUNCIL, et al., Plaintiffs, v. Henry J. VOSS, Director, California Department of Food and Agriculture, Defendant and California Poultry Industry Federation, Intervenor.

Civ. No. S-93-1882 DFL JFM.

United States District Court, E.D. California.

April 8, 1994.

Harry E. Hull, Jr., McDonough, Holland & Allen, Sacramento, CA and William A. Bradford, Jr., Pro Hac Vice, Hogan & Hartson, Washington, DC, for plaintiffs Nat. Broiler Council, American Meat Institute, and Arkansas Poultry Federation.

Randall B. Christison, Atty. Gen., San Diego, CA, for defendant Henry Voss, Director, California Dept. of Food and Agriculture.

Brian Pass, Irell & Manella, Los Angeles, CA, for intervenor California Poultry Industry Federation.

MEMORANDUM OF DECISION AND ORDER

LEVI, District Judge.

Subdivision 26661 of the California Food and Agricultural Code (the "California Act" or the "Act") restricts the use by wholesalers of the term "fresh" on poultry product labels to poultry that has been stored at temperatures above 25 degrees.¹ The Act became effective on January 1, 1994.

Plaintiffs are three poultry and meat trade associations. Some of plaintiffs' members process poultry for wholesale distribution in California from outside of the State. In an action filed December 2, 1993, plaintiffs claim that the California Act is pre-empted by the Poultry Products Inspection Act (the "PPIA"), 21 U.S.C. §§ 451-470, a federal statute which also governs the labeling of poultry products, and further that the Act places an undue burden on, and discriminates against, interstate commerce.² After hearing on December 22, 1993, the court issued a preliminary injunction prohibiting defendant Henry J. Voss, Director of the California Department of Food and Agriculture, from enforcing the labeling provision of the Act when it became effective.

Plaintiffs presently move for summary judgment only on their pre-emption claim, and seek declaratory as well as permanent injunctive relief. Plaintiffs are supported in their motion by the United States Department of Agriculture (the "USDA"), which submitted an amicus curiae brief at the request of the court. The motion is opposed by the Director of the California Department of Food and Agriculture and by intervenor, the California Poultry Industry Federation.³

For the reasons discussed below, plaintiffs' motion for summary judgment on the preemption cause of action is granted. Because the pre-empted provision of § 26661 is not severable from the statute's remaining provisions, the injunction barring enforcement of the labeling provision must also bar enforcement of the remainder of the statute.

I

Congress enacted the PPIA in 1957 "to provide for the inspection of poultry and poultry products and otherwise regulate the processing and distribution of such articles ... to prevent the movement or sale in interstate or foreign commerce of, or the burdening of such commerce by, poultry products which are adulterated or misbranded." 21 U.S.C. § 452.

The PPIA contains an express pre-emption provision in a section entitled "Non-Federal jurisdiction of Federally regulated matters. ..." 21 U.S.C. § 467e. Section 467e expressly preempts labeling requirements that are "in addition to, or different than" those made under the PPIA:

marking, labeling,⁴ packaging, or ingredient requirements ... in addition to, or different than, those made under this chapter may not be imposed by any State ... with respect to articles prepared at any official establishment⁵ in accordance with the requirements under this chapter....

Id. The question on this motion is whether the California Act establishes a "labeling requirement" that is "in addition to" or "different than" "those labeling requirements made under" the PPIA. If the answer is yes, then § 26661 is pre-empted by federal law.

A

Plaintiffs and the USDA argue that the California Act imposes a "labeling requirement" within the meaning of 21 U.S.C. § 467e because it limits the use of the word "fresh" on poultry product labels. Drawing a distinction between "requirements" and "prohibitions," defendant argues that the California Act does not establish a "labeling requirement" because it does not require poultry producers affirmatively to include specified language on the label, but merely prohibits them from labeling poultry as "fresh" unless it complies with the Act.

Defendant's interpretation of "labeling requirements" is hypertechnical and inconsistent with the language and purpose of the PPIA.⁶ First, the term "requirements" ordinarily includes prohibitory obligations.⁷ One can be, and often is, required not to do something, and there is no practical difference between a command that requires that the opposite of an action be taken — "you are required to be quiet" — as opposed to one that prohibits the very action — "talking is prohibited." Either form of expression fairly is described as a requirement, requiring action or inaction. Here in mandatory language the California Act requires that the term "fresh" only may be placed on the label in certain circumstances.

Second, the language of several provisions of the PPIA indicates that Congress did not intend a distinction between "requirements" and "prohibitions." For example, 21 U.S.C. § 459, entitled "Compliance by all establishments," provides that "no establishment ... shall process any poultry or poultry product except in compliance with the requirements of this chapter." Similarly, § 467e gives the states concurrent jurisdiction with the USDA to prevent the distribution of adulterated or misbranded articles "consistent with the requirements under this chapter." Surely Congress did not intend to allow official establishments and states, in performing the tasks delegated to them under the PPIA, to heed only the affirmative, but not the prohibitory, portions of the statute. Given this use of the term "requirements" elsewhere in the PPIA (including another clause of § 467e), the word "requirements," as used in the pre-emption clause, should be construed to include prohibitory enactments. See Ardestani v. INS, ___ U.S. ___, ___, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991); Mississippi Poultry Ass'n, Inc. v. Madigan, 992 F.2d 1359, 1363 (5th Cir.), reh'g en banc granted, 9 F.3d 1116 (5th Cir. 1993).⁸

Third, a construction of the term "requirements" to exclude prohibitory enactments would nullify the PPIA's pre-emption clause. Under defendant's interpretation, so long as a state used prohibitory phrasing, state labeling regulations would not be pre-empted even if in direct conflict with affirmative federal requirements under the PPIA.⁹ A narrow interpretation of "requirements," to exclude prohibitions, entirely defeats the pre-emption clause and would leave labeling regulation within the power of the states. Yet according to the legislative history of the pre-emption clause, one of its key purposes was to ensure national uniformity in labeling:

States would be precluded from imposing additional or different labeling ... requirements for federally inspected products.

Both industry and consumers would benefit from ... greater uniformity of labeling requirements....

H.R.Rep. No. 1333, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 3426, 3442.

Finally, there is little force to defendant's argument that in other legislative schemes Congress expressly has pre-empted both requirements and prohibitions and thus by negative inference only intended here to pre-empt requirements. Defendant particularly relies on the pre-emption provision in the Public Health Cigarette Smoking Act, 15 U.S.C. § 1331-1340 (the "Smoking Act"), which pre-empts any "requirement or prohibition" inconsistent with the Smoking Act. Id. § 1334(b). But this same argument has been convincingly rejected in the context of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), which has a pre-emption clause similar to that in the PPIA. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (7th Cir.1993) ("`no requirements or prohibitions' is just another way of saying a `state shall not impose ... any requirements.' Not even the most dedicated hair-splitter could distinguish these statements."); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1179 (10th Cir.) ("Although the words employed in § 136v(b) of FIFRA are different from those in ... the ... Smoking Act, their effect is the same."), cert. denied, ___ U.S. ___, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993); see also Stamps v. Collagen Corp., 984 F.2d 1416, 1421 (5th Cir.) (as to the Medical Device Amendments of the Federal Food, Drug, and Cosmetic Act (the "MDA"): "It would be anomalous to interpret the MDA differently from the Smoking Act solely on the basis that while they both employ `requirement,' the MDA omits `prohibition.'"), cert. denied, ___ U.S. ___, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993). Congress uses a variety of similar formulations when enacting broad pre-emption clauses, and there is no indication in the PPIA, or in the other statutes with similar pre-emption clauses, that Congress intends substantive differences to flow from minor wording changes in these various clauses. See 21 U.S.C. § 678 (Federal Meat and Inspection Act) ("additional" or "different" state "requirements"); 7 U.S.C. § 136v(b) (FIFRA) (same); 21 U.S.C. § 360k(a) (the MDA) (same); 42 U.S.C. § 4846 (Lead-Based Paint Poisoning Prevention Act of 1973) (pre-empting state laws which "provide for a requirement, prohibition or standard which differs from" federal law); 15 U.S.C. § 1392(d) (National Traffic and Motor Vehicle Safety Act of 1966) (pre-empting state provisions "not identical to the Federal standard").

For all of these reasons, the court concludes that the term "requirements" in the PPIA pre-emption clause unambiguously includes prohibitory enactments. It follows that the California Act imposes a "labeling requirement" within the meaning...