256 F. 376 | N.D. Cal. | 1919
Application by plaintiff for a preliminary injunction. The bill discloses that plaintiff manufactures in Ohio the well-known article of food popularly called “noodles,” and introduces its product into this state through the medium of local wholesalers and jobbers for sale to retailers, and ultimately through the latter to the consumer. The goods are doubly labeled on their packages or containers as “Golden Egg Brand Noodles” and “Golden Age Noodles,” and are shipped to the jobbers who, according to the allegations of the bill, “distribute the same to retail dealers for sale to consumers in the same packages” in which they leave the factories, and that the packages “remain unbroken until they reach the hands of the individual consumers.”
The defendant in its return distinctly disclaims any purpose or intention to interfere with the goods until after they have been sold by the importing wholesaler to the retailer, removed from the cases in which shipped, and placed on the shelves of the latter for sale to the consumer. Ordinarily such disposition withdraws goods shipped into a state from the domain of inierstate commerce, and makes them a part of the general body of local commerce, and subjects them to any reasonable regulations by the state. Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224; Ex parte Maier, 103 Cal. 484, 37 Pac. 402, 42 Am. St. Rep. 129.
Plaintiff insists, however, that under the principles of McDermott v. Wisconsin, 228 U. S. 115, 33 Sup. Ct. 431, 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39, its goods are still a part of interstate commerce and solely subject to regulation by Congress, notwithstanding they may have been sold by the wholesaler to the retailer, so long as they remain in the original packages in which they were packed by the manufacturer, and the allegations of its bill are evidently shaped to bring the case made within that contention. But in this I think plaintiff has misapprehended the scope and effect of the principles announced in that case. The case was somewhat unusual in its circumstances. The sale of the goods was directly by the manufacturer in one state to the retailer in another, the latter thus being the original recipient from the manufacturer without any intermediate sale within the state. The state law of Wisconsin, into which the goods were shipped, moreover, undertook to forbid a sale within the state of the particular food product without a removal of the label or brand under which it had been received and the substitution of one prescribed by the local law, although the label or brand under which it had been shipped into the state was not violative of the requirements of the federal Food and Drugs Act. The court held that, as the commodity was still in the hands of the original importer, it was to be regarded as a part of interstate commerce and was not subject to state regulation, and, further, that to require the label to be removed while the article remained unsold would be an unwarranted interference with the regulations adopted’ by Congress for the protection of such commerce.
That is as far as that case goes. It was manifestly not intended by anything there said to work any change in the principles previously
“For reasons stated in McDermott v. Wisconsin, 228 U. S. 115, 38 Sup. Ct. 431, 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39, if the state could require the label to he removed while the bottles remained in the importer’s hands- unsold, it could interfere with the means reasonably adopted by Congress to make its regulations obeyed. But all this has nothing to do with the question when interstate commerce is over and the articles carried in it have come under the general power of the state. The law upon that point has undergone no change.”
The present case is precisely similar in its facts, so far as their legal aspects are concerned, to the Weigle Case. It appears from defendant’s return on the order to show cause that the plaintiff’s goods are shipped into the state in large containers or boxes, each containing a certain number of small packages or paper cartons, in quantities suitable for sale to the consumer, and that it is in this latter form they are sold by retailers. The McDermott Case has no application to such a state of facts. Nor is there anything in either Schollenberger v. Penn., 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, or Collins v. New Hampshire, 171 U. S. p. 30, 18 Sup. Ct. 768, 43 L. Ed. 60, to support plaintiff’s contention. Both cases, so far as they bear upon the question, are quite in harmony with the views above expressed.
Plaintiff’s contention is, however, in effect that Congress has undertaken to prescribe a standard of purity for such products and as to how they are to be branded, and that it is not competent for the state to prescribe a different standard or measure of purity or manner of labeling; in other words, that, Congress having legislated on the subject, its enactment prescribes the exclusive measure of requirement for the manufacturer which the state is not at liberty to transgress, even after the goods have reached the hands of the retailer.
“The Food and Drugs Act indicates its intent to respect the recognized lino of distinction between domestic and interstate commerce too clearly to need argument or an examination of its language. It naturally would, as the distinction is constitutional. The fact that a food or drug might be condemned by Congress, if it passed from state to state, does not carry an immunity oí foods or drugs, making the same passage, that it does not condemn. Neither the silence of Congress nor the decisions of oiticers of the United States have any authority beyond the domain established by the Constitution. Rast v. Van Deman & Lewis Co., 240 U. S. 342, 362, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. When objects of commerce get within the sphere of state legislation, the state may exercise its independent judgment, and prohibit what Congress did not see fit to forbid. When they get within that sphere is determined, as we have said, by the old long-established criteria. The Food and Drugs Act does not interfere with state regulation of selling at retail. Armour & Co. v. North Dakota, 240 U. S. 510, 517, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548; McDermott v. Wisconsin, 228 U. S. 115, 131, 33 Sup. Ct. 431, 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39. Such regulation Is not an attempt to supplement the action of Congress in interstate commerce, but the exercise of an authority outside of that commerce that always has remained in the states.”
3. There is nothing in the state law, so far as the provisions here involved are concerned, which would seem to transcend the power of the state in the reasonable exercise of its regulatory power. The provisions are evidently aimed at the protection of its inhabitants against deceit and misrepresentation as to the real character of the food presented for their consumption; and it matters not in this respect if plaintiff’s goods be, as claimed, healthful and nutritious food and free
In view of these considerations, the application for an injunction must be denied. '