1

such package had been increased or diminished in weight by the absorption of moisture. (Emphasis added)

For further discussion of the principle stated in Overt that exercise of the police power in regulating the production, manufacture, distribution and sale of food products must be reasonable in order to comply with the Fifth and Fourteenth Amendments, reference is made to Jay Burns Baking Co. v. Bryan, 264 U.S. 504,68 L. ed. 813; Holsum Baking Co. v. Green, 45 F. 2d 238; State v. Curran, 124 So. 909; and l'.S.v. Kraft Phenix Cheese Corp., 18 F. Supp. 60.

In Overt the commodity was wheat flour. The manufacture and distribution of wheat flour furnishes a good illustration of the soundness of and the necessity for the constitutional principle announced in Overt. Wheat flour is a hygroscopic substance that will vary in moisture content depending on the differing relative humidities and temperatures to which it is exposed. Wheat flour must comply with a federal definition and standard of identity that prescribes a maximum moisture content of 15 percent. The amount of moisture in most flour as it flows from the mill into packages is about 131,2 percent to 14 percent, depending upon the amount of moisture required for the best milling results from the particular wheat being milled.

A staple item in the American diet, wheat flour is packaged in paper bags of standard sizes for sale at retail at economical prices. The bags, which are relatively inexpensive, are not moisture proof. When evaporation occurs, nothing is lost but moisture. The full nutritional contents of the package remain and the consumer gets full value.

When a mill sets up to produce flour for retail sale, economic considerations require a run of substantial quantities for distribution anywhere, in any state and any direction, that can be economically served from that mill. Special runs for separate localities are economically unsound. There is no way that the mill can determine at the time of packaging where the package will go or what atmospheric conditions it will encounter.

Although flour has been used for purposes of illustration, the relevant facts relating to other packaged foods and commodities in general are similar. The same constitutional requirements and the same need for allowance of variations for loss of weight by evaporation apply.

To prevent loss of moisture in packaged commodities of hygroscopic character between date of packaging and date of retail sale under varying atmospheric conditions to which they may be exposed would require packaging in moisture-proof containers. This would substantially increase the packaging costs and transportation costs. The increase would have to be passed on to the consumer, with no resulting benefit to the consumer. This extra expense would have to be added to the price of every package manufactured for retail sale—not merely to those packages that actually will happen to lose moisture by evaporation. Furthermore, many foods would be adversely affected technologically by moisture-proof packaging.

Interstate Commerce

In addition, a strong case can be made in support of the theory that a state law or local ordinance that would result in the addition of unnecessary expense to the retail purchase price of every package of a commodity sold throughout the nation, merely in order to avoid evaporation in a relatively small percentage of the packages sold. I would constitute a burden on interstate commerce in violation of the interstate commerce clause of the United States Constitution.

In exercising its right to regulate interstate commerce, Congress has the power to regulate the labeling of foods up to the time such food is sold at retail. See United States v. Sullivan, 332 C.S. 684. 68 S. Ct. 331, 92 L. Ed. 297 (1948). Nor can it be disputed that Congress has exercised this power to the fullest with the passage of the Food, Drug and Cosmetic Act, 21 U.S.C. Section 301 et seq., and

. the Fair Packaging and Labeling Act, 15 U.S.C. Section 1451, et 89. These acts control the packaging of foods throughout the United States. The Food and Drug Act states that a food package shall be deemed to be "misbranded,"

unless it bears a label containing . . . (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 paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established. ! by regulations. . . . 21 U.S.C. 343(e) (Emphasis added)

Similarly, the Fair Packaging and Labeling Act prohibits the distribution in interstate commerce of any food package unless the package is in conformity with regulations promulgated by the Secretary of Health, Education and Welfare. 15 U.S.C. 1453 and 1454. Vote

. that this direction in the Food and Drug Act is mandatory, and the Fair Packaging and Labeling Act specifically provides that it does not supersede the Food and Drug Act. 15 U.S.C. 1460. Under this authority granted in both the Food and Drug Act and in FPLA. the Commissioner of Food and Drugs, by delegation from the Secretary of Health, Education and Welfare, has promulgated a regulation carrying out this Congressional mandate. Section 1.8b(q) of federal regulation (21 C.F.R. 1.85(9)), promulgated under both acts, provides:

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

In the face of this comprehensive federal labeling program, it would ! seem that any state or local attempt to impose a further labeling requirement would violate the interstate commerce clause. A manufacturer confronted with the federal requirements on the one hand

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and a no-variation state or local law on the other is presented with a Hobson's choice. Either he continues to label, pack and distribute food in compliance with federal law and consider termination of state or local sales operations or he reorganizes his nationwide packing, labeling and distributing procedures in a vain effort to comply with the state or local law. In the latter case, the effort would probably be in vain because of the scientific characteristics of the food and illegal because it would of necessity violate federal law.

The problem is that a state or local governmental unit should not and does not have the power to discriminate against food packaged and shipped in full compliance with federal regulations, nor does it have the power to impose its law or ordinance on interstate commerce. This would be an obvious burden on interestate commerce in violation of article 1, section 8, clause 3 of the federal Constitution. Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945). Any other conclusion would permit the anomaly inherent in a situation where two identical food packages are packed and shipped, one to a reasonable variation state and the other to a novariation state. If we assume each is subjected to identical atmospheric conditions and as a result contains slightly less than the stated net weight by reason of moisture loss, the food offered for sale in the reasonable variation state may be legally sold, but the food offered for retail sale in the no-variation state would be considered to be illegal. No reason exists which would justify such disparate treatment of identical articles of commerce. The flow of interstate commerce must be free from such illogical impediments. Quaker Oats Co. v. City of New York, 295 N.Y. 527, 68 N.E. 2d 593 (1946); State v. Hotel Bar Foods, Inc., 18 N.J. 115, 112 A. 2d 726 (1955); and State v. Waldman, 61 N.H. Super 403, 160 A. 2d 677 (Cty. Ct. Law Div. 1960).

Another interesting interstate commerce question arises because of the wording of Section 5.15. of the Model Law which limits the allowable variations to those caused by evaporation only "after the commodity has entered intrastate commerce." Section 12.1.2. of the current version of the Model Regulation defines “introduced into intrastate commerce" to mean the time and place at which the sale and delivery of a package is made within the state."

Under a literal construction of this language, the first sale and delivery of a packaged commodity shipped into the state from another state would usually be the retail sale to the ultimate consumer, with the result that no variation would be allowed. By contrast, if the packaged commodity were manufactured within the state it would be allowed all evaporation from the time of shipment by the manufacturer to time of retail sale. The competitive disadvantage thus imposed on interstate commerce in the commodity may also violate the interstate commerce clause of the Constitution of the United States.

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Federal Preemption

Let me turn now to a brief discussion of the issue of federal preemption. The proper labeling of food packages is a matter of vital interest to consumers, industry and enforcement officials in the entir nation, not just in one state. Nationwide uniformity is a cause which has been espoused by the National Conference for many years, and ir my opinion it has never been more important to reemphasize the necessity of uniformity than it is in 1973. The federal government has recognized both the importance

of consumer protection and the need for national uniformity of labeling requirements, and has successfully achieved these two goals by the creation of a detailed and well-conceived packaging and labeling program in which the National Bureau of Standards has been a very active participant for many years, going back to both Bill Bussey and Mac Jensen. To achieve this uniformity Congress has passed boti the Food and Drug Act and the Fair Packaging and Labeling Act. Because of the disastrous consequences of nonuniformity, Congress wrote Section 12 into the Fair Packaging and Labeling Act which. provides:

It is hereby declared that it is the express intent of Congress to supersedi 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 requirement: of section 1453 of this title or regulations promulgated pursuant thereto 15 U.S.C. 1461. (Emphasis added)

The Food and Drug Act requires regulations authorizing reasonable variations, and FDA has effectuated the statutory mandate bi making a specific allowance for moisture gain or loss in Section 1.81 (9) of the regulation, which is quoted above, promulgated under both

. the Food and Drug Act and FPLA. It would, therefore, appear that a state law or local ordinance which does not allow for reasonable variations would run afoul of the preemption section of the FPLA. Conclusion

In conclusion, may I say that in our system of American jurisprudence, and particularly in this area of the law which deals with consumer protection, it is important to continually reexamine position: previously taken. It is, therefore, important for you as enforcement officials and for those of us in industry to regularly revisit the questio! of moisture loss. If the historical position which has been taken by the National Conference, by state legislatures following your

lead. by the Food and Drug Administration, and by the courts is sound, it! should remain as our present position. I submit to you that it is sound. and that any change in that historical position would in fact be detrimental to consumers and in law would be unconstitutional.

NET QUANTITY_DIRECTIONS AND DETERMINATIONS

Status of Handbook 67 Revision by ERIC A. VADELUND, Office of Weights and Measures,

National Bureau of Standards

My purpose here this morning is to review for you all known developments concerning Handbook 67. In short, I will attempt to tell you what we are doing and why we are doing it. But, first, the why.

As you know, Handbook 67 is a checkweighing procedure manual published by the National Bureau of Standards in 1959. Since that time it has been used officially and unofficially as a method for the inspection, test, and con

trol of packaged commodities by both industry and enforcement agencies. The document has not been significantly amended or changed since its publication. Some few additions to it have been made, but these have been limited to a discussion of how to use the checkweighing procedure when testing aerosol products.

Over the years certain deficiencies and limitations have become apparent. The Handbook, for example, offers guidelines only for packages sold by weight; little or no mention is made of packages sold by count, fluid measure, linear measure, or the like. Generally, questions concerning the proper procedure to be employed in checking packaged goods labeled in other than weight units have been worked out on an ad hoc basis and presented to weights and measures officials during regularly scheduled training schools. Another limitation is the lack of any discussion concerning what to do with packaged commodities bearing two or more statements of quantity, such as count and size, weight and size, or area, count, and unit dimensions. Numerous packages are so labeled and do present problems.

Another basic problem we have encountered is that while Handbook 67 has been widely accepted and employed, this has by no means been universal. There are enforcement agencies at the federal and state levels which employ other procedures. This necessarily presents a problem when the same shipment of goods, or part of the same shipment, is being checked by two different agencies employing two different methods with the distinct possibility of two different results.

Elaborate detailed criticisms could be made about any of the deficiencies or limitations of the Handbook including the lack of a definition of a good lot, shipment or delivery. These terms are used without exact definition and without recognition of the fact that they