Voss
National Broiler Council v. Voss
Opinion
Lead Opinion
The State of California appeals a summary judgment declaring that the labeling provision of § 26661 of the California Food & Agricultural Code is pre-empted by the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. §§ 451 — 470, 851 F.Supp. 1461 . Sec *743 tion 26661(a)(2) prohibits wholesalers from using the word “fresh” on labels for poultry and poultry products unless the poultry has been stored at temperatures at or above 26 degrees. 1 The PPIA regulates the distribution and sale of poultry and poultry products and contains an express pre-emption clause. It declares that “marking, labeling, packaging, or ingredient requirements (or storage or handling requirements found by the Secretary to unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under this chapter may not be imposed by any State_” 21 U.S.C. § 467e (emphasis added). Plaintiffs, three poultry and meat trade associations, brought this action claiming, inter alia, that § 26661(a)(2) is pre-empted by the PPIA.
The district court held that: (1) the PPIA pre-empts the labeling provision of § 26661; and (2) the labeling provision was not severa-ble from the…
Concurring Opinion
Scannlain, J.
specially concurring:
The lay reader of this opinion may be puzzled by the legal gymnastics which always appear to permeate the law of government regulation. To clarify, I would note that Congress has given a federal bureaucrat the power to order that frozen chickens be labeled “fresh.” We affirm this absurdity by holding, quite properly, that the California legislature is federally preempted from requiring that frozen chickens be labeled “frozen.”
Our opinion should not be viewed as a retreat from the battle scene of federalism, however. Rather, we “hold the field and, at the very least, render a little aid to the wounded.” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 580 , 105 S.Ct. 1005, 1033 , 83 L.Ed.2d 1016 (1984) (O’Connor, J., dissenting). Indeed, the States are not without devices of their own to protect their citizens when Congress permits the federal bureaucracy to impose the absurd. California stores can still be required by state law to tell the truth in advertising and to display frozen chickens for what they are— “frozen” — even though the labels on the chickens themselves are required by federal law to say “fresh.”