by Gary Jay Kushner
Federal Judge David Levi recently held invalid a California law defining the term "fresh" as used on labels and in other marketing media for poultry sold in that state.
Because the California requirement was different from, and in addition to, the requirements imposed by USDA, Levi held the statute to be pre-empted by federal law. Accordingly, he issued a permanent injunction prohibiting its enforcement. The case is being appealed.
Specifically, the California law would have made it illegal for poultry processors, wholesalers or certain others to advertise, label, describe, hold out or sell as fresh any poultry that had ever had an internal temperature equal to or below 25 degrees F, or that had ever been stored in aggregate for 24 hours or more at an average temperature of 25 degrees F or below. Retailers were exempt from this restriction-and under another California law, they could sell as fresh any poultry that had not been chilled to 5 degrees F or below at the center core.
Under federal policy, on the other hand, poultry may be labeled as fresh so long as it has not been frozen, defined as reaching an internal temperature of 0 degrees F. And the federal label rule applies to processors and retailers alike.
If the California law had been allowed to stand, many products labeled under federal inspection, the labels of which had been previously approved by USDA, could have been deemed misbranded in California. Furthermore, because it could take more than 24 hours for a product processed in some parts of the country to reach the market in California-and because temperatures in warehouses and trucks in which such products are held may fall below 25 degrees F for reasons of safety and wholesomeness even though the product temperatures may still exceed 25 degrees F-products shipped long distances would violate the California statute.
The lawsuit leading to Levi's very strong 19-page opinion overturning the California law was brought by the National Broiler Council, AMI and the Arkansas Poultry Federation. On the other side were the State of California's Department of Food and Agriculture and the California Poultry Industry Federation.
National uniformity
Although Levi's decision rested on pre-emption grounds-federal law explicitly prohibits states from imposing labeling requirements that are different from, or in addition to, federal requirements-the plaintiffs also charged that the California law created an undue burden on interstate commerce in violation of the U.S. Constitution.
Levi acknowledged these effects when he issued an equally compelling preliminary injunction earlier in the case.
What is significant is not how the term "fresh" should be defined for purposes of poultry labeling-a question even reasonable people might debate- but because the case stands for national uniformity in food labeling-and potentially, all aspects of food marketing.
Levi left no doubt as to the pre-emptive effects of the Poultry Products Inspection Act, the law under which USDA regulates poultry produced under federal inspection.
What's more, he gave great deference to USDA's interpretation of its labeling authority through the agency's policy memorandum, informally issued by FSIS' Food Labeling Division.
The Federal Meat Inspection Act, under which USDA regulates meat products, contains the same pre-emption language as the poultry statute.
There is no reason that Levi's rationale would not apply in the context of a state law seeking to regulate the marketing of meat products in a way that differs from the federal approach.
And this is not unusual. Indeed, the 1977 landmark case in which the U.S. Supreme Court held the Federal Meat Inspection Act to pre-empt state (California) requirements involved the net weight labeling of bacon.
Other cases in which the meat industry has challenged state labeling initiatives on pre-emption grounds include a Michigan law requiring signs at retail to identify hot dogs that satisfied USDA's standards, but not state requirements.
Big benefits-nationally
In short, the California fresh case, especially if it generates an equally strong opinion at the appellate level, will be the broadest and most decisive ruling in the area of federal pre-emption over state and local requirements.
It will substantially enhance the legal arsenal available to oppose state initiatives that interfere with national uniformity in food labeling requirements. As a result, this ruling will considerably benefit national food producers and consumers.