*2 “ Ga., Neville, Statesboro, effect of the ‘Both the and J. William dis- were to make a enactment complainant-appellant. by markets, the color tinction at the Ga., Durden, Swainsboro, grown tags, Homer S. in between tobacco grown elsewhere. The effect Macon, Jr., Ga., Groover, A. Denmark disparity a wide of was to create Atlanta, Ga., Nardone, de- Jr., Joe fendants-appellees. groups the two of the growers receiving much low- Carolina resulted in losses of er amount. This RIVES, and GOD- Before COLEMAN plaintiff warehousemen.’ business the Judges. BOLD, Circuit F.Supp. 54, 189 59. classifying by geographi- tobacco not Judge: RIVES, Circuit origin by cal its characteristics. words, In our view that is Con- scope1 originally of broader Issues gress, legislating concerning in the single ques to the narrowed have been types of auction, tobacco sold at provisions of tion of whether empted the field and left no room for Georgia Agricultural Promotion 1968 Sales any supplementary regulation state ,2 of to Act requiring concerning types. those same As we grown that it to show bacco seen, have spection the Federal Tobacco In- grown by a contrib is tobacco 2, 511a, Act in 7 U.S.C. § Georgia Agri § uting member says that ‘uniform standards of clas- Commission,3 Commodity inv cultural n by inspection’ sification ‘impera- are pre-empted Federal a field ade protection tive for producers Act, 511- Tobacco 511q, 7 U.S.C. §§ engaged and others in commerce and as construed v. Hus public interest therein.’ The 1961, 327, sey, 297, 368 U.S. 299, Report 1102, Cong., House No. 74th Hussey Camp 7 L.Ed.2d aff’d Sess., length 1st reviewed at harm bell, S.D.Ga.1960, F.Supp. 189 54. growers that resulted from the ab- think that this case is controlled We regulations sence governing the by Hussey, supra, Campbell v. and there- opinion ‘grades’ of tobacco sold on the auction length quote fore at from the ‘There market. are between 60 and the Court:4 grades single type 100 in a of tobac- question do not here the “We co, practical and it 'is not for a farmer Georgia’s conflicts whether to familiarize himself with the tech- the federal law. Rather we have question nical grades factors on which these * * pre-emption. Under Id., p. based 2. The need ‘of federal law there can be but one for ‘a grading, definite standard’ of ficial’ ‘uniform’ standard —one is id., 2,p. grades,’ id., or of ‘standard 3 by and that eliminates confusion p. 4, repeated again. over and “3. below court stated: importance grade’ of a ‘standard “ Type ‘The statute defines emphasized in the on the debates geographical 14 tobacco on the basis of Congressman floor of the House. origin upon If no other basis. legislation Hancock stated that this Type it would be provided that given 14 under the law and be tobacco on the auction tag; a white while if it came from the inspected by market ‘would be com- side of the River Savannah petent judges of Govern- Type South Carolina would not be employ graded according ment * * given tag. 14 and be a blue Campbell, opinion supra, 3. Court, See Lewis v. 1. 292 F. See District Lewis Supp. reproduction Campbell, M.D.Ga.1968, F.Supp. at 968 for a facsimile 292 of the label. 961. strong 1968, I, pp. 4. 2. There was a dissent Laws Vol. 1118- Justice joined Black, 1125. Justices Frankfurter Harlan, this Court course majority bound decision.

79 quality Porter, 341, Pacific United States standards R. Co. v. * * Cong-.Rec. 383, 11870. Con- 672]; 79 346 S.Ct. [47 71 L.Ed. gressman ‘Stand- Corp., added that Rice v. Mitchell Santa Fe Elevator 331 guide 218, grades 1146, would serve as U.S. L.Ed. ard [67 classifying 1447]; Mond, their Hood farmers & Sons v. Du Id., 657, The Senate U.S. for market.’ [69 S.Ct. 93 L.Ed. Sess., Cong., 1st Report 865].” No. 74th *3 re- approval bill a of the on based its really very This ease turns on a nar- Ag- Department by port of made the point, is, row that the extent of the stating pur- that the After riculture. emptive design of the Federal Tobacco provide ‘uni- pose to was of the bill Inspection Act. In Florida Lime and protection of for the form standards’ Paul, 1963, Avocado v. Growers farmers, report ‘The bill- the added: 132, 147, 1210, 248, 10 L.Ed.2d Ag- Secretary of the authorize the Court contrasted that act with the standards for riculture establish to Agricultural Adjustment Act and said: size, grade, type, by tobacco which its may condition, or other characteristics provisions objectives “The and of so determined, and the standards be Agricultural Adjustment the Act bear the stand- would be official established little resemblance to those in which pur- for such States ards of the only United preemptive last Term found we a Id., pose.’ p. 1. design Campbell Hussey, 368 327, 299], U.S. 297 seen, 7 L.Ed.2d Act, adopts [82 as we have “The In the making ‘type, grade, Federal Tobacco Act the that view case, Congress involved that given inspected had size, tobac- condition’ declared ‘uniform standards of clas- Unit- the co ‘the standards of official inspection’ sification to ‘im- The be 511b. ed 7 U.S.C. States.’ § § unequivo- perative regulations precise protection pro- for the of saying engaged those ‘official ducers and cal what others in com- things Among public merce the interest standards’ are. there- they say, already noted, legislative to- in.’ 7 U.S.C. as 511a. § history replete character- ‘which has the same bacco references qualities, corresponding to istics for ‘uniform’ or need ‘official’ lengths standards, colors, and shall treated which be could harmonize regardless any grading type, inspection factors one of of as tobacco at throughout geographical country. of or nature markets historical single cannot an which be determined Under the statute set of stand- CFR, promulgated examination of the tobacco.’ ards was be to Cum.Supp., Secretary 29.1096. Agriculture, § of ‘and the 14, regardless type of is includable in standards so established would be the may grown, pro- where it have been official standards of the United States specifications of vided meets the purpose.’ S.Rep. for such No. type. Cong., 74th 1st 1.” Sess. the fed- “We have then a case where The evidence was not at all clear as regulation, even eral law excludes local present to how effective the law had though than does more latter no proved. supplement At the time of trial it had the former. Under 20-day operated only days grades types of a definition or to- of of selling labeling Fed- season. Cause and effect could bacco and the which shortages adopted, be to eral com- ascribed the tobacco Government has grades plementary regulation crop, to differences in the is as fatal state regulations piles tobacco, as various inherent su- state which conflict Georgia periority tobacco, with the federal scheme. Missouri Georgia Georgia “A. Yes sir. of tobacco possibly factors. “Q. they give premium And however, was, dis- without The evidence it? six-year period pute the rel- over a Georgia ative sales sir, attempting “A. Yes we’re Georgia anybody type market and Carolina to hurt else's of tobac- a con- showed co.” market on the in favor sistent differential not, purpose effective or Whether dispute there Nor was

tobacco. provisions of the of the statute present nearly now under attack is so identical promote tobacco. sales with that of the Tobacco Iden- Newton, an em- David witness tification Act invalidated ployee of the Commissioner Hussey might well be described Agriculture, testified: in the same terms which *4 quoted opinion Court from the of the advantage Well, “Q. is the what judge three district court: “Both the Georgia stamp, putting Geor- purpose Georgia and effect of the enact- get gia it; a better isn’t it to label on ment to were make a distinction at the Georgia’s product price for over South * * * markets, by tags, between pur- product; that isn’t Carolina’s Georgia and that pose? grown elsewhere. The effect to buying com- certain “A. There are disparity a wide create prefer panies to over that have seemed groups two the Carolina Georgia tobacco; years to use growers receiving a much lower amount. why they prefer at- it, I not would This resulted in losses business to the tempt say. to plaintiff warehousemen.” 368 U.S. at 300-301, 82 at 329. “Q. identified, those com- So, if it is willing give, pay panies True, present Act section of the premium for tobacco? provides in no label shall that “Such way grade, or other reflect classification sir, “A. Yes not true but that’s regulated governed by matter companies companies do but some agency or Federal of the State preference tobac- have a government,” in- while co. supra, Campbell Hussey, validated in v. “Q. So, purpose? is the that accomplished purpose more the same So, hope, only Type forthrightly “A. we not definition promote tobacco, however, promote think, 14 tobacco.5 We two difference between the statutes crops. formal, applied purely to tobacco is as “Q. particular, course, But in this substance, purpose their and that is tobacco and that would be the probable The de- effect are the same. purpose putting it on there ? sign the Federal Hussey, Campbell “A. Yes sir. Act as construed v. supra, appears comprehensive so “Q. companies those Where displace requires state law which easily fer tobacco could more by geographical or- identify of tobacco prices it and obtain igin promoting sales tobacco rather than South with the Carolina tobacco? of the tobacco.

5. Quoted 368 U.S. at 298 and S.Ct. 327. judgment of the final

Indeed af- three-judge court which district GREEN, INC., Plaintiff, BOWLING Camp- Court firmed Appellant, enjoins Hussey, supra, specifically bell v. practice.6 such STATE BANK STREET AND TRUST COMPANY, Defendant, Appellee. judgment therefore reversed No. 7475. pro- for further the cause remanded opinion. ceedings with this consistent Appeals, United States Court of First Circuit. remanded. Reversed 6,May (dissenting). COLEMAN, J. Judge (dissent

COLEMAN, Circuit

ing). respectfully

I dissent. my deference, view With majority Hussey, cited controlling.

opinion, What is not could held was case based tobacco classification

foster a upon the charac-

geography than rather *5 product.

teristics nothing

Here, however, we State, separate right power of the or identify classification, to apart from its borders— product within nothing identifi- identification

cation. that this prepared hold I am not (or the federal preempted is) Congress dec- no such made statute. Sligh Kirkwood, U.S. laration. (1915) L.Ed. Inspec- when the the books on also, See, Pike passed. Act was tion 844, 25 Church, 137, 90 S.Ct. (1967).

L.Ed.2d affirm.

I would distinguishes “Ordered, adjudged any which, or and decreed manner having office successors between tobacco and their differentiates defendants Georgia, acting origin in behalf of them Florida or Alabama on all others hereby perpetually hand, Carolina or or in South of them are the one or either hand; enjoined permanently and restrained on the other North Carolina * * * any attempting making requiring enforcing ; or distinction or from from enforce, markets or other on the tobacco or indirect or differentiation direct separate rea- means, lots of tobacco market origin place any geographic plan any method, which identi- or device son of or identify growth.” offered tends to fies or origin, geographic to its for sale as