For many years, every can of tuna was stamped that it was inspected according to standards set by the Pennsylvania Department of Agriculture. That proviso hasn’t been there for a while, but if you ever saw it you may have envisioned massive shipments of every ounce of tuna to be sold in America first being shipped to warehouses in Philadelphia, where hoards of Pennsylvania inspectors descended upon it like locusts.
Actually, the reason for the stamp was simple: Pennsylvania law required that every can of tuna sold in Pennsylvania had to say that. Tuna canners found it less expensive simply to mark every can that way instead of printing one set of cans just for Pennsylvania and then hoping that no unmarked cans slipped through.
That’s the problem with having 50 states, plus thousands of local governments. Manufacturers hate these kinds of local laws, and lobby Congress to enact uniform standards so that they can use the same packaging anywhere in the country.
And so, for example, in the early 1970s, synthetic detergents — especially those containing phosphates — got a lot of bad press. In March, 1971, the Dade County, Florida Board of Commissioners enacted an ordinance requiring every box of detergent sold in Dade County to be labeled showing its ingredients in descending order by weight (as food products are required to do now).
A chemical industries trade group immediately challenged the law in the Florida federal courts, claiming that the Florida ordinance was superseded by a federal law that regulated labeling of “hazardous substances.” And indeed, that federal statute did specifically say that it superseded contrary state or local laws.
Still, one has to wonder how carefully the trade group thought this argument through. Would you want to argue that the laundry detergent you sold was covered by a law regulating “hazardous substances”?
The first federal judge who heard the case (and who, living in Dade County, may have wondered about that “hazardous substance” stuff) thought there was nothing wrong with Dade County’s ordinance. So the chemical trade group appealed to the federal appeals court, which happened to sit away off in Texas — a state that probably doesn’t require labeling of things like high explosives, rat poison, or strong acids.
Predictably, the result was different. The appeals court ruled that the federal labeling law superseded Dade County’s ordinance. Perhaps because this decision was somewhat against the prevailing popular opinion, however, none of the three judges signed the opinion, issuing it anonymously in the name of “the court.”
The third judge, John R. Brown, agreed with the result, but did so eccentrically. Brown was something of a maverick, who liked to write pun-filled opinions, and this time wrote a concurring opinion, that went beyond even his usual mischief because of — well, let’s call it the special research he put into it.
Namely, Brown sent his law clerk to the local supermarket and had him copy down the names of every brand of detergent on the shelves. Brown then began his opus by explaining that advertisers had replaced soap with detergent as an advertising staple. He said he was adding “these few comments in the style of that street to . . . keep the legal waters clear and phosphate-free.”
“Clearly,” wrote Brown, his court’s decision “represents a Gamble since we risk a Cascade of criticism from an intervening Tide of ecology-minded citizens.” But a contrary ruling might precipitate “a Niagara of complaints” from an industry that wants uniform labeling standards. (See, I told you.) He also said of his court that, “Inspired by the legendary valor of Ajax, . . . we have Boldly chosen the course of uniformity . . . and . . . are Cheered” by the thought that federal law still provided consumers with protection.
Brown went on like that for several paragraphs, talking about Congress’ “Cold Power” to preempt state laws, about how it hadn’t fashioned merely the “Head and Shoulders” of a regulatory scheme; that his court found the preemption clause in the federal law “with some Joy” and that, to Dash to the heart of the matter, one would find that Congress had “intended to wield its Arm and Hammer to Wisk away such local laws,” and that “It is as plain as Mr. Clean the proper Action is that the Dade County ordinance must be superseded, as All comes out in the wash.” He put all the detergent names in italics to make sure everyone got the point.
Federal judges are appointed for life, of course, but reading this kind of stuff, citizens might justifiably be concerned that some of them . . . have too much time on their hands.
Frank Zotter, Jr. is a Ukiah attorney.
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