Rath Packing Co. v. Becker

Citation530 F.2d 1295
Decision Date29 October 1975
Docket Number73--3092,Nos. 73--2481,73--2496 and 73--3180,73--2482,s. 73--2481
PartiesThe RATH PACKING COMPANY, a corporation, Plaintiff, Counter-Defendant and Appellant, v. M. H. BECKER, as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-Appellant, C. B. Christensen, as Director of Agriculture of the State of California, Intervenor, Appellee and Cross-Appellant. The RATH PACKING COMPANY, a corporation, Plaintiff and Appellant, v. Joseph W. JONES, as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Before BROWNING and TRASK, Circuit Judges, and RICH, Judge. *

RICH, Judge:

These suits were brought by Rath Packing Company (hereinafter 'Rath') to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal.

Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat-packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which 'any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use an human food.' Becker and Jones and the Directors of the Departments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California.

Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented. 1 We have jurisdiction of this appeal under 28 U.S.C. § 1291.

The district court, in a memorandum and order reported at 357 F.Supp. 529 (C.D.Cal.1973), granted in part the relief requested, and all parties appealed the determinations adverse to them.

This case is a companion to General Mills, Inc., et al. v. Jones, 530 F.2d 1317, decided concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well.


This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief description of the properties of bacon and how it is packed and weighed is necessary.

The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in 'drafts' of approximately one pound weight. An operator places each draft on an insert, or 'tux', board, which is a hardboard coated either with wax or with polyethylene. 2 The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USDA procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a 'dry tare.' 3 There is no evidence that Rath has violated federal weight standards in any way.

The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of 'misbranding' to the prior federal meat inspection laws. 21 U.S.C § 601(n) provides in relevant part:

(n) The term 'misbranded' shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:

(5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this subparagraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary (of Agriculture);

In 9 CFR 317.2(h)(2) the Secretary purported to implement § 601(n)(5):

(2) The statement 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 packing 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.

In the supermarket the California inspectors employed a different weighing method, using a 'wet tare.' 4 The California procedure is set forth in detail in 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5. Briefly, the California inspectors follow a twelve-step procedure set forth in Section 2933.3 of the regulations:

(1) determine the number of packages in the lot to be sampled;

(2) from a table in the regulation, determine the total package sample size (e.g., 15 packages out of a lot of 300);

(3) from the same table, determine the tare sample size (e.g., 2 packages out of a lot of 300);

(4) record the gross weight of each tare sample package (5) remove the usable contents from each tare sample, weight the used, empty container, and compute the average tare weight; 5

(6) weigh the remaining packages in the package sample and record their weights, determining the amount of error from labeled weight for each package;

(7) (not applicable to bacon);

(8) Calculate the preliminary total error for the sample, and determine the arithmetical average error;

(9) Calculate the range of error for each sub-group of the package sample;

(10) determine whether any unreasonable errors exist, and eliminate from further computations all samples whose errors exceed the preliminary average error in underweight situations by more than the amounts set forth in tables in the regulations; if the number of unreasonable errors exceeds a certain set figure for each sample size, further action, including the issuance of off-sale orders, may be undertaken.

(11) recalculate the total and average error of the sample excluding the unreasonable errors;

(12) '(a) If the total error as obtained from the sample is plus and is less than the value shown in Table III for the corresponding range and sample size, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.

'(b) If the total error obtained from the sample is less than the above-determined value, and the error is minus, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken the lot shall be passed. If additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.' (Sec. 2933.3.12.)

If an inspector cannot pass the lot based on this sampling technique or after retesting, he then may order the lot off-sale under the provisions of California Business and Professions Code § 12211:

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.

Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that 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 the 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.

Evidence was adduced at the trial from various California officials, including Becker, that the county departments do not recognize variations in net weight that result from water loss during good...

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