Florida Lime & Avocado Growers, Inc. v. Paul/Dissent White
Mr. Justice WHITE, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting in No. 45.
This is the second time this case has come before the Court. In Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed. 568, the case was here for review of dismissal of the complaint for want of jurisdiction. The Court reversed and remanded for trial and the case is now here on the merits, after the three-judge District Court refused to enjoin the appellee state officers from enforcing § 792 of the California Agricultural Code against the appellant growers. 197 F.Supp. 780, probable jurisdiction noted, 368 U.S. 964, 965, 82 S.Ct. 439, 437, 7 L.Ed.2d 394. In view of the Court's disposition of the matter today, it is probable that this case like a revenant will return to us within another few Terms with a still more copious record.
Appellants grow, package, and market Florida avocados in interstate commerce, subject to the applicable provisions of § 8c of the Agricultural Adjustment Act, as amended, 7 U.S.C. § 608c, and the regulations of the Secretary of Agriculture promulgated thereunder. An average of 6.4% of the Florida avocados shipped to California each year are barred for failure to satisfy the requirements of California Agricultural Code § 792,  which provides in pertinent part that '(a)ll avocados, at the time of picking and at all times thereafter, shall contain not less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.'  Appellants based their claim for relief upon the Equal Protection Clause of the Fourteenth Amendment, the Commerce Clause, and the Supremacy Clause. Since we in the minority have concluded that the Agricultural Adjustment Act and regulations promulgated thereunder leave no room for this inconsistent and conflicting state legislation, we reach only the Supremacy Clause issue.
The California statute was enacted in 1925, when, according to the District Court, practically all the avocados in the United States came from that State. 197 F.Supp., at 782. The purpose of this legislation was to prevent the marketing of immature avocados, which never ripen properly, but decay or shrivel up and become rubbery and unpalatable after purchase by the consumer.  Ibid. The effect of marketing immature avocados is to 'cheat the consumer,' and thus have 'a bad (economic) effect upon retailers and producers as a whole, since it increases future sales resistance' against buying avocados. Id., at 783.
In 1925, when the state law was enacted, most of the avocados grown in California were, as they are at the present time, from trees derived from Mexican varieties. Such avocados contain at least 8% oil when mature. The Florida avocado growers, however, the only substantial competitors of the California growers, 197 F.Supp., at 787, n. 8, depend in substantial part on trees of non-Mexican parentage. The Florida avocados involved here, hybrid and Guatemalan varieties, may reach maturity and be acceptable for marketing, at least under federal standards, prior to reaching an 8% oil content. 
There is expert opinion to the effect that the best gauge of maturity is the percentage of oil contained in the fruit. Id., at 783. California has adopted that physical-chemical test in § 792. There is also expert opinion that the best test of maturity is the date on which the fruit is picked, and its size and weight at such time. Ibid. The United States Secretary of Agriculture has adopted that test for measuring maturity of avocados for ripening, and has specifically rejected as unsatisfactory all physical and chemical tests. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425 (Dept.Agr.Dkt. No. AO-254). The District Court found the California oil test to be of the latter type.
The Agricultural Adjustment Act, § 8c, 7 U.S.C. § 608c, provides that, whenever the Secretary 'has reason to believe that the issuance of an order will tend to effectuate the declared policy' of the Act, which is 'to establish and maintain such minimum standards of quality and maturity * * * (for fruit) in interstate commerce as will effectuate * * * (the) orderly marketing of * * * agricultural commodities as will be in the public interest,' § 2(3), 7 U.S.C. § 602(3), he shall give notice for and hold a hearing upon a proposed order. In the case of fruits, § 8c(6)(A) provides that the Secretary may limit or provide methods for the limitation of quality of produce 'which may be marketed in or transported to any or all markets in the current of interstate or foreign commerce * * *', or affecting commerce, during any specified period.
Orders proposed by the Secretary under this statute become effective only when approved by a majority of the affected growers. See § 8c(8)-(9). In 1954 the Secretary held hearings and found that a majority of the South Florida avocado growers favored imposition of quality and maturity standards for avocados pursuant to a marketing order promulgated under the Act. 19 Fed.Reg. 3439.  The order, id., at 3440-3443, as amended (formerly §§ 969.1-969.71), 7 CFR § 915.1-.71, establishes an Avocado Administrative Committee, comprised of South Florida avocado growers and shippers, with the power to recommend marketing regulations to the Secretary relating to quality and maturity standards and prohibiting the marketing of substandard fruits.  It is specifically contemplated in § .51 that such maturity standards be based on a pickingdate schedule, and other tests are rejected as unsatisfactory. Section .53 provides that exemption from the regular picking-date regulations of § .51 be allowed for portions of avocado crops of particular varieties when they are proved to be mature prior to the prescribed picking date.  All regulated avocados, including those with so-called picking-date exemption certificates, must be inspected by the Federal-State Inspection Service, a United States Department of Agriculture and Florida Department of Agriculture joint service, and be certified as meeting the prescribed quality and maturity standards before they may be marketed. § .54.  At various times, other regulations governing Florida avocados have been issued which include more specific quality standards. See 22 Fed.Reg. 6205, 7 CFR §§ 51.3050-51.3053, 51.3058. These quality standards require that the fruit be 'mature,' for all grades of avocados, but, as in the case of the main order, they do not refer to oil content.  Since 1954, each year the Secretary has issued, maturity regulations fixing the dates when and minimum sizes at which the various varieties of Florida avocados may be packed and shipped.  These regulations are recommended by the committee, pursuant to 7 CFR §§ 915.50-915.51, approved by the Secretary after consideration and modification if necessary, 7 CFR § 915.52(b), and published in the Federal Register, after which they have the force of law. California Comm'n v. United States, 355 U.S. 534, 542-543, 78 S.Ct. 446, 451-542, 2 L.Ed.2d 470; Standard Oil Co. v. Johnson, 316 U.S. 481, 484, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611; Maryland Cas. Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157, 64 L.Ed. 297.
The ultimate question for the Court is whether the California law may validily apply to Florida avocados which the Secretary or his inspector says are mature under the federal scheme. We in the minority believe that it cannot, for in our view the California law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581. 
The central and unavoidable fact is that six out of every 100 Florida avocados certified as mature by federal standards are turned away from the California markets as being immature, and are excluded from that State by the application of a maturity test different from the federal measure. Congress empowered the Secretary to provide for the orderly marketing of avocados and to specify the quality and maturity of avocados to be transported in interstate commerce to any and all markets. Although the Secretary determined that these Florida avocados were mature by federal standards and fit for sale in interstate markets, the State of California determined that they were unfit for sale by applying a test of the type which the Secretary had determined to be unsatisfactory. We think the state law has erected a substantial barrier to the accomplishment of congressional objectives.
We would hesitate to strike down the California statute if the state regulation touched a phase of the subject matter not reached by the federal law and a claim were nevertheless made that such complementary state regulation is preempted, compare Compbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299, with Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182. But here the Secretary has promulgated a comprehensive and pervasive regulatory scheme for determining the quality and maturity of Florida avocados, pursuant to the statutory mandate to 'effectuate such orderly marketing of such agricultural commodities.' He prescribes in minute detail the standards for the size, appearance, shape, and maturity of avocados. Inspection procedures and, for violation of the regulations, criminal and civil sanctions are provided. No gap exists in the regulatory scheme which would warrant state action to prevent the evils of a no-man's land-at least in relation to the issues presented in this case. Compare International Union v. Wisconsin Board, 336 U.S. 245, 254, 69 S.Ct. 516, 521, 93 L.Ed. 651. No aspects of avocado maturity are omitted under the federal regulations.  Any additional state regulation to 'supplement' federal regulation would pro tanto supplant it with another scheme, thereby compromising to some degree the congressional policy expressed in the Act. 
By contrast, in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, upon which appellees seek to rely, the federal agricultural regulatory scheme was partial and incomplete. It was contended that § 8c of the Agricultural Adjustment Act, by its own force, preempted application of the California Agricultural Prorate Act. The Court held that since no marketing order concerning the affected commodities had been promulgated under § 8c, and since the Act's policies therefore must be deemed by the Secretary not to be effectuated by entry into the field, it followed that there was no preemption: 'It is evident, therefore, that the Marketing Act contemplates the existence of state programs at least until such time as the Secretary shall establish a federal marketing program * * *.' Id., at 354, 63 S.Ct. at 315.  In the case at bar, of course, the Secretary has entered the field with his own comprehensive regulatory program with which the state program conflicts.
Nor does the California statute further a distinctive interest of the State different from the one which the federal scheme protects. Compare Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227. There is no health interest here. The question is, as the District Court recognized, 197 F.Supp., at 782-783, a purely economic one: the marketing of immature avocados, which do not ripen properly after purchase by the consumer but instead shrivel up and decay, has a substantial adverse effect on consumer demand for avocados. According to the testimony of appellees' expert from the California Department of Agriculture, § 792 was 'deemed to be necessary by representatives in the industry due to deplorable marketing conditions'-the sale of immature avocados, which was severely 'damaging the reputation of the industry by providing consumers with undesirable avocado fruits.' Despite the repeated suggestions to this effect in the Court's opinion, there is no indication that the state regulatory scheme has any purpose other than protecting the good will of the avocado industry-such as protecting health or preventing deception of the public-unless as a purely incidental by-product. Similar findings on damage to the industry because some growers marketed immature avocados are contained in the United States Department of Agriculture order which preceded the issuance of the federal regulations. 19 Fed.Reg., at 2419, 2424. These two regulatory schemes have precisely the same purpose, which is purely an economic one; they seek to achieve it, however, by applying different tests to the same avocados.
We also believe that the purpose and objective of Congress and of the marketing order promulgated under its authority call for the application of uniform standards of quality, even absent the total occupation of the field by the federal regulatory scheme. See Guss v. Utah Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. Lack of uniformity tends to obstruct commerce, to divide the Nation into many markets. When produce is accepted or rejected in different localities depending upon local vagaries, the flow of commerce is inevitably interrupted, hindered, and diminished. In recognition of this need for uniformity, Congress stated at the outset of the Agricultural Adjustment Act:
'It is declared that the disruption of the orderly exchange of commodities in interstate commerce * * * destroys the value of agricultural assets which support the national credit structure * * * and burden(s) and obstruct(s) * * * commerce.
'It is declared to be the policy of Congress * * * to establish and maintain such minimum standards of quality and maturity and such grading and inspection requirements for agricultural commodities * * * as well effectuate * * * orderly marketing * * *.' §§ 1, 2, 7 U.S.C. §§ 601, 602.
The language of the statute is buttressed by the Committee Reports, H.R.Rep.No. 1241, 74th Cong., 1st Sess., at 22; S.Rep. No. 1011, 74th Cong., 1st Sess., at 15, where it is said in explanation of § 10(i) that the Secretary is authorized to negotiate with state authorities in order to secure their voluntary compliance in carrying out the declared policy of the Act f uniformity of regulatory programs.
The contention is made that § 8c(11) negatives the policy declaration that uniformity is sought by the Act. That section directs the Secretary to issue orders limited to as small a geographic region as practicable in order to insure that due recognition be accorded to local conditions of soil, climate, and the like. This provision recognizes that while uniformity at the market-end of the flow of commerce may be necessary to prevent burdens on commerce in produce, nationwide uniformity may be neither necessary nor desirable at the production-end of the flow of commerce. It may be, as the Court suggests, that the Secretary might find for other avocado growing regions, if there were any, that different tests furnished the most convenient index of maturity for those avocados. But it does not follow from this premise that the statutory scheme will permit equally varied standards in the Nation's various market places. Section 8c(11) does not contemplate such regional variations not would they comport with the statutory purpose. It may not obstruct or burden commerce to admit avocados into commerce on diverse bases in different parts of the country; any individual grower in that situation would face but one standard. But it does burden commerce and frustrate the congressional purpose when each grower faces different standards in different markets. To slip from permissible nonuniformity at one end of the stream of commerce to permissible nonuniformity at the other end thus is to read the statute too casually and gloss over the congressional purpose, which expressly was to facilitate marketing in and transportation to 'any and all markets in the current of interstate commerce.'
It is also suggested that the use of the term 'minimum standards' indicates a lack of desire for uniformity. This reads too much into a phrase, for it is a commonplace that when the appropriate federal regulatory agency adopts minimum standards which on balance satisfy the needs of the subject matter without disproportionate burden on the regulatees, the balance struck is not to be upset by the imposition of higher local standards. See for example Southern R. Co. v. Railroad Comm'n, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661. And when the cumulative operation of more strict local law is to be continued in such circumstances, despite the congressional balance struck, Congress has so provided in express terms. For example, in Rice v. Board of Trade, 331 U.S. 247, 255, 67 S.Ct. 1160, 1164, 91 L.Ed. 1468, it was noted that the federal statute provided that 'nothing in this section or section 4b shall be construed to impair any State law applicable to any transaction enumerated or described in such sections.' See, to the same effect, Plumley v. Massachusetts, 155 U.S. 461, 15 S.Ct. 154, 39 L.Ed. 223; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 161-162, 62 S.Ct. 491, 498-499, 86 L.Ed. 754.
Nothing in the Act, marketing order, or legislative history shows any congressional intention to accommodate or permit state controls inconsistent with federal law or marketing orders issued thereunder. The authorization contained in § 10(i) to seek the cooperation of state authorities in pursuit of the goal of uniform standards of quality and maturity carries no implication that state standards contrary to the federal are to stand. The Secretary was not directed to defer to any State. The fact is that he did work out a cooperative scheme with the State of Florida where the avocados involved in this case are grown. These avocados, which California rejected, were jointly inspected by federal and state authorities applying the same standards in order to move mature avocados into the stream of interstate commerce. To read into an authorization to the Secretary to cooperate with the States a direction that he cooperate with, or that his regulatory scheme defer to, not only the State directly affected by a marketing order but every other State in which avocados might be sold would clearly frustrate the federal purpose of the orderly marketing of avocados in interstate commerce.
We would not, as appellees would have it and as the majority appears to suggest, construe § 10 as limiting the power of the Secretary under § 608c to the issuance of marketing orders which are complementary to and not inconsistent with state regulation.  The suggestion that the Secretary cooperate with the States should be viewed as was a very similar authorization to the same government official in Rice v. Chicago Board of Trade, 331 U.S. 247, 67 S.Ct. 1160, 91 L.Ed. 1468. There the statute provided that the Secretary of Agriculture 'may cooperate with any department or agency of the Government, any State * * * or political subdivision thereof.' A unanimous Court remarked that this provision supported 'the inference that Congress did not design a regulatory system which excluded stare regulation not in conflict with the federal requirements,' but it was careful to note that 'it would be quite a different matter if the Illinois Commission adopted rules for the Board which either violated the standards of the Act or collided with rules of the Secretary.'
The conflict between federal and state law is unmistakable here. The Secretary asserts certain Florida avocados are mature. The state law rejects them as immature. And the conflict is over a matter of central importance to the federal scheme. The elaborate regulatory scheme of the marketing order is focused upon the problem of moving mature avocados into interstate commerce. The maturity regulations are not peripheral aspects of the federal scheme. Compare International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. On the contrary, in the Department of Agriculture order which preceded issuance of the avocado regulations, it was found that the marketing of immature avocados was one of the principal problems, if not the principal problem, faced by the industry and that there regulations should be adopted to solve this problem which was demoralizing the industry. 19 Fed.Reg., at 2419, 2424.  The conflict involved in this case therefore cannot properly be deemed 'too contingent, too remotely related to' (356 U.S., at 621, 78 S.Ct., at 925) the policy and purpose of the Act of call for requiring the inconsistent state scheme to defer or be accommodated to the federal one.
California nevertheless argues that it should be permitted to apply its oil test cumulatively with the federal test to insure that only mature avocados are offered in its markets. The Court accepts this contention as 'a well-settled proposition, in the name of Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, and the uncited 'all the authorities,' which appear to be nonexistent, ante, p. 144, and n. 13. There are at least three answers to this contention.  First, it ignores the limitations of the 8% oil test as applied to the inherently less oily Florida avocados, which the District Court indicated were 'acceptable prior to the time that they reach that content.' As applied to California avocados, the 8% oil figure leaves an ample tolerance for individual variation, but it is otherwise as applied to the less oily Florida varieties. Second, if the argument is that the federal test is unsatisfactory and that the California test is a better one-as it would appear to be in view of the reliance on 'a higher standard,' which in this case means only a more accurate standard because no one asserts that some avocados can be less highly mature than others and therefore ripen less fully-it must be remembered that the Secretary, to whom Congress delegated its power, made a legislative finding in his order adopting the picking-date-size method of determining maturity and specifically rejecting physical chemical tests of the California type. That finding cannot be impeached collaterally in this proceeding. Adopting one maturity test rather than another 'is a legislative, not a judicial, choice' and its validity 'is not to be determined by weighing in the judicial scales the merits of the legislative choice and rejecting it if the weight of evidence presented in court appears to favor a different standard.' South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 191, 58 S.Ct. 510, 517, 82 L.Ed. 734. See Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. Neither California nor this Court has any place second-guessing the wisdom of Congress or its delegate. Third, Congress did not limit its interest to the picking of avocados, nor even to their transportation in commerce to markets in other States. It expressly declared its intention to regulate the maturity and quality of produce 'which may be marketed in * * * any and all interstate markets.' Congress sought to regulate marketing from the beginning through the end of the stream of commerce, in order to eliminate impediments at any part of that stream. The Court ignores the plain words of the statute in concluding that the California law does not frustrate the federal scheme.
Even if the California oil test were an acceptable test for the maturity of the Florida avocados, which the Secretary found it was not, the cumulative application of that test solely for the purpose of a second check on the maturity of Florida avocados, solely to catch possible errors in the federal scheme, would prove only that the particular avocados actually tested (and thereby destroyed) were immature, and it would not justify the rejection of whole lots from which these samples came. If Florida avocados are to be subjected to this test, the alternatives are to leave the California market to the California producers (at least, to producers of Mexican varieties) or else, in order to avoid the hazard of rejection, to leave the Florida avocados on the trees past the normal (and federally prescribed) picking date, thereby shortening the post-picking marketing period and thus frustrating the federal scheme aimed at moving avocados mature under federal standards into all interstate markets.  A reasonable balancing of the state and federal interests at stake here requires that the former give way as too insubstantial to warrant frustration of the congressional purpose.
We have, then, a case where the federal regulatory scheme is comprehensive, pervasive, and without a hiatus which the state regulations could fill. Both the subject matter and the statute call for uniformity. The conflict is substantial-at least six out of every 100 federally certified avocados are barred for failure to pass the California test -and it is located in a central portion of the federal scheme. The effect of the conflict is to disrupt and burden the flow of commerce and the sale of Florida avocados in distant markets, contrary to the congressional policy underlying the Act. The State may have a legitimate economic interest in the subject matter, but it is adequately served by the federal regulations and this interest would be but slightly impaired, if at all, by the supersession of § 792. 
In such circumstances, the state law should give way; it 'becomes inoperative and the federal legislation exclusive in its application.' Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 156, 62 S.Ct. 491, 496. Accord, McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754; Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. The conclusion is inescapable that the California law is an obstacle to the accomplishment and execution of the congressional purposes and objectives, and that the California law and the Agricultural Adjustment Act, as supplemented by the regulations promulgated thereunder, cannot be reconciled and cannot consistently stand together.  The Court should not allow avocados certified as mature under the federal marketing order to be embargoed by any State because it thinks that they are immature. We would therefore reverse with instructions to grant the injunction requested.
- There is no question in this case as to whether the California oil content law keeps out of California Florida avocados which pass the federal test. It their motion to dismiss and the accompanying sworn affidavit below, the appellee state officers gave 6.4% as the average rejection figure per year, over a four-year period, basing the percentage on the official records of the California Department of Agriculture. Rejections reached a high of 16.4% in the 1955-1956 season. It is hard to understand the Court's refusal to consider the figures because of the way they entered the record. See ante, p. 136 and n. 3, and p. 157. We believe appellees' sworn statements as to the State's official records are properly before the Court now, and that in any event they will come into the record shortly, since it is clear that on remand the same data will come in via deposition. If the majority actually has any doubt on this score, and believes that accepting as a fact that California rejects six out of every 100 Florida avocados as immature would have an effect on the result, it should remand for further findings on preemption as it does on burden on commerce. The same papers below, and the opinion of the District Court, 197 F.Supp., at 783, reveal that about 5% of the appellants' shipments to California have been rejected for failure to attain the 8% oil content required under California law. The record is silent on the in terrorem effect of the California law on interstate commerce in Florida avocados, and we therefore do not consider it here.
- Avocados not meeting this standard may not be sold in California, are 'declared to be a public nuisance,' and they may be seized, condemned, and abated. Violators may be punished criminally and by civil penalty action. See ante, p. 134, at n. 1.
- It is not contended that the purpose of the 8% minimum oil content requirement is for the purpose of insuring a high caloric or other nutritional content in the fruit. No health issue has been raised in this case. Cf. 197 F.Supp., at 785-786. Nor has it been contended at any stage of the proceedings that the statutory purpose is directly to protect local consumers from fraudulent and deceptive practices; moreover, there is no evidence to support that view.
- 'Mexican varieties of avocados contain (generally speaking) the highest oil content of any varieties, when mature. Hybrid varieties attain the next highest oil percentages, and West Indian the lowest. Hybrid varieties generally attain oil content in excess of 8% if left on the trees long enough, but they do not necessarily attain such an oil content by the time that they may be marketed under the Florida Avocado Order. They are mature enough to be acceptable prior to the time that they reach that content, according to plaintiffs' witnesses.' 197 F.Supp., at 783.
- The findings of the United States Department of Agriculture, contained in its order determining what terms should be contained in the avocado regulations, were that the marketing of immature fruits increases consumer resistance and materially impairs the marketing of the entire crop, that there was no satisfactory physical or chemical test for determining maturity, and that maturity can satisfactorily be determined by the picking-date-size method. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425 (Dept. Agr. Dkt. No. AO-254).
- This is the customary method of administering marketing orders under the Act. See, e.g., 7 CFR §§ 905.51, 906.39, 907.51, 907.63, 908.51, 908.63, 909.51, 909.52, 910.51, 910.65, 911.51. In the case of the avocado order, supra, note 5, the Department specifically determined that this would be the appropriate method to administer the regulatory program. 19 Fed.Reg., at 2422-2423.
- Section .53 provides that such exemption shall be granted under procedural rules approved by the Secretary. Section .52(b) would appear to provide for review of particular determinations before the Secretary, taken by a party aggrieved thereby or taken by the Secretary sua sponte. Exemption under § .53 is allowed only from the picking-date-size standards prescribed under § .51(a) (1), and not from other regulations such as quality (§ .51(a)(2)), container and packaging (§ .51(a)(3)), or grading and labeling (§ .51(a)(4)). And inspection by the Federal-State Inspection Service for these standards and those set out as the terms and conditions of advance release under § .53 is, of course, required.
- Violation of the order is punishable by a fine of from $50 to $500. 7 U.S.C. § 608c(14). Violations of regulations may also be made punishable by the Secretary by a penalty not to exceed $100. 7 U.S.C. § 610(c).
- These regulations and others, 7 CFR §§ 51.3055-51.3069, govern in exhaustive detail the size and shape of avocados, their color, skin condition, stem length, and the manner in which they may be shipped.
- 27 Fed.Reg. 5135-5136, 6705, 8265, 9175, 10091; 26 Fed.Reg. 3692, 4928, 5418-5419, 6429, 7694, 8663; 25 Fed.Reg. 5476, 7712, 8903, 9170, 9888; 24 Fed.Reg. 1152, 3105, 4050, 4828, 5824-5825, 6904, 7354, 8444, 9123, 9262; 23 Fed.Reg. 1025-1026, 4351-5352, 5477, 6318, 7344, 7943, 8047, 9056, 9689; 22 Fed.Reg. 3652, 4251-4252, 5680, 6746, 7173-7174, 7357-7358, 8118; 21 Fed.Reg. 3307-3308, 3488, 6329-6330; 20 Fed.Reg. 3427, 4178-4179, 6699-6700, 7876, 8328-8329, 8688; 19 Fed.Reg. 4404-4405, 4601, 4862, 5469, 5966, 5967, 6368, 6604, 6625, 7477. Similar orders have been issued from time to time concerning maturity of imported avocados. See, e.g., 25 Fed.Reg. 5445; 24 Fed.Reg. 4134, 4829, 5825, 5996; 23 Fed.Reg. 4352, 6027; 22 Fed.Reg. 3957; 21 Fed.Reg. 4257.
- 'There is not-and from the very nature of the problem there cannot be-any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of * * * federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404. (Emphasis added.) Compare ante, p. 141.
- We do not imply that these regulations governing the fitness of avocados in terms of maturity would preclude application of local regulations concerning, for example, bacteria content or DDT content. Cf. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852. Neither health regulation nor safety considerations, cf. Lyons v. Thrifty Drug Stores Co., 105 Cal.App.2d 844, 234 P.2d 62, are involved in this case. And there is no finding that there is anything fraudulent, deceptive, or unmarketable about a Florida avocado which is mature enough to be introduced into interstate commerce under a federal certificate evidencing its quality. Compare Plumley v. Massachusetts, 155 U.S. 461, 472, 15 S.Ct. 154, 158, 39 L.Ed. 223, quoted ante, p. 144.
- It was suggested that there is a gap in the federal scheme through which immature avocados may enter commerce bearing an exemption certificate issued 'seemingly * * * in the unfettered discretion of the growers' own 'Committee.' This contention omits the requirement of § .53 that exemption from the normal picking-date-size provisions be allowed only to avocados inspected and proved mature because they satisfied special maturity tests prescribed under procedures approved by the Secretary, and the fact that such avocados carry a federal certificate as to maturity and quality. It also omits the Secretary's general review power over regulatory determinations provided by § .52(b). No contention has been made that actual abuses have occurred under the exemption certificate provisions nor has any basis upon which they may be anticipated been suggested.
- It also came out, by representation of the Solicitor General as amicus curiae before this Court, that the Department of Agriculture had collaborated in drafting the state raisin program, and had taken other actions which 'must be taken as an expression of opinion by the Department of Agriculture that the state program * * * is consistent with the policies of the Agricultural Adjustment and Agricultural Marketing Agreement Acts.' Id., at 358, 63 S.Ct. at 317. Hence, in holding 'We find no conflict between the two acts (state and federal) and no such occupation of the legislative field by the mere adoption of the (federal) Act, without the issuance of any order by the Secretary putting it into effect, as would preclude the effective operation of the state act,' the Court expressly declared, 'We have no occasion to decide whether the same conclusion would follow if the state program had not been adopted with the collaboration of officials of the Department of Agriculture * * *.' Id., at 358, 63 S.Ct. at 317.
- We note that § 1300.24(b) of the California Agricultural Code contains a provision similar to federal § 10(i):
- 'Probably the most important single factor of quality is that of maturity.' 19 Fed.Reg., at 2424.
- To the extent that this contention is to be understood to be limited to 'all the authorities' supporting 'a higher standard for consumers,' we have already indicated, pp. 168-169, supra, that the California law is not aimed at consumer protection but at avocado grower protection.
- The avocado may remain hard and in perfect condition on the tree for some time after reaching maturity, for the fruit does not soften until after it is picked. But the harvesting and shipping of fruit which has reached the fullest possible degree of maturity on the tree is not recommended. The seed may sprout while the fruit is on the tree or the fruit may ripen so rapidly after harvesting that it cannot be shipped satisfactorily. Ruehle, The Florida Avocado Industry, 70 (Univ. of Fla. Agr. Expt. Sta. Bull. No. 602, 1958); Wolfe, Toy and Stahl, Avocado Production in Florida, 83 (Ruehle rev. ed., Fla., Agr. Ext. Serv. Bull. No. 141, 1949).
- There is no indication in the record as to how many Florida avocados are kept out of the California market by the prudence of growers and handlers who voluntarily avoid the risks of the California oil test. Nor are we advised as to whether other States have adopted avocado legislation, so that the cumulative burden on commerce is further increased. In any event, 6% is a not insubstantial figure in terms of restraints upon commerce.
- It is suggested that the regulations involved here are 'simply schemes for regulating competition among growers * * * initiated and administered by the growers and shippers themselves.' From this proposition it is in some way reasoned that 'the self-help standards of this marketing program' should not be deemed to preclude application of state law which conflicts with and interferes with the operation of the comprehensive federal marketing program. The 'simply' part of the proposition overlooks, however, the fact that these are the Secretary's regulations, promulgated under congressional authority. It also overlooks the Secretary's extensive supervisory powers and his statutory duty under 7 U.S.C. § 602(3) to insure that regulations be carried on 'in the public interest.' And no case has been cited to us which indicates that the delegation to the regulatees of the power to propose regulations in the first instance violates any provision of general law. See Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; United States v. Rock Royal Co-op., 307 U.S. 533, 577-578, 59 S.Ct. 993, 1014-1015, 83 L.Ed. 1446; Currin v. Wallace, 306 U.S. 1, 16, 59 S.Ct. 379, 387, 83 L.Ed. 441; Johnson & Co. v. Securities & Exchange Comm'n, 198 F.2d 690, 695 (C.A.2d Cir.).
- And see Castle v. Hayes Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 899 L.Ed. 68; First Iowa Hydro-Elec. Coop. v. Federal Power Comm'n, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Dumont Labs v. Carroll, 184 F.2d 153 (C.A.3d Cir.). The suggestion, ante, p. 141, that the doctrine of Gibbons v. Ogden is limited to carriers is unwarranted in view of such cases as First Iowa.