    OFFICE   OF   THE   ATTORNEY   GENERAL   . STATE   OF   TEXAS

   JOHN       CORNYN




                                                        July 26,2002



Eduardo J. Sanchez, M.D., M.P.H.                               Opinion No. JC-053 1
Commissioner of Health
Texas Department of Health                                     Re: Whether chapter 150, subchapter A or B of the
1100 West 49th Street                                          Texas Agriculture Code violates the Commerce
Austin, Texas 78756-3 199                                      Clause of the United States Constitution, and related
                                                               questions (RQ-0478-JC)


Dear Commissioner            Sanchez:

         State statutes from other states that require labeling imported meat as “imported” have been
held to violate the Commerce Clause, article I, section 8, clause 3 of the United States Constitution.
See U. S. CONST. art. I, fj 8, cl. 3; Armour & Co. v. Nebraska, 270 F. Supp. 941,946 (D. Neb. 1967)
(per curiam) (mem.); Int ‘1Packers Ltd. v. Hughes, 271 F. Supp. 430,433 (S.D. Iowa 1967) (mem.);
Ness Produce Co. v. Short, 263 F. Supp. 586,589 (D. Or.) (per curiam), aff’d, 385 U.S. 537 (1966)
(per curiam). Section 150.002 of the Texas Agriculture Code directs a wholesaler or retailer of
imported fresh meat to label or brand the meat as “‘Product of                ’ (nation of origin of the
imported fresh meat) or other words clearly indicating the nation of origin.” TEX. AGRIC. CODE ANN.
tj 150.002(e) (V emon Supp. 2002). Noting that the Texas Department of Health (the Department)
has not adopted rules implementing section 150.002, you ask whether the statutory requirement
violates the Commerce Clause.’ We believe a court would conclude, consistently with judicial
precedent, that it does.

         We note, however, that recent amendments to the federal Agricultural Marketing Act of
1946,7 USC. ch. 38, which will take effect on September 30,2004, require retailers of certain meat
products to “inform consumers . . . of the [product’s] country of origin.” Farm Security and Rural
Investment Act of 2002, Pub. L. No. 107- 17 1, 8 108 16,116 Stat. 134,534 (2002) (to be codified at
7 U.S.C. $5 1638-1638d). These recent amendments also require the United States Secretary of
Agriculture to issue guidelines for “voluntary country of origin labeling” by September 30,2002.
Id. sec. 284(a), 116 Stat. 134,535 (2002) (to be codified at 7 U.S.C. § 1638~). Being a federal law,
as opposed to a state law, this provision would not be subject to a Commerce Clause objection and
would ultimately appear to accomplish the same result sought by the state statute in question.




         ‘Letter from Eduardo J. Sanchez, M.D., M.P.H., Commissioner of Health, Texas Department of Health, to
Honorable John Comyn, Texas Attorney General, at 1 (Dec. 5, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
Eduardo J. Sanchez, M.D., M.P.H.     - Page 2         (JC-053 1)




         You also ask whether the federal Meat Inspection Act, 21 U.S.C. chapter 12, and the federal
Poultry Products Inspection Act, 21 U.S.C. chapter 10, preempt the Texas statute. See Request
Letter, supra note 1, at 2. Because we conclude that a court would find the statute unconstitutional
on the basis of the Commerce Clause, we do not resolve the preemption issue. See U.S. CONST. art.
VI, cl. 2 (Supremacy Clause); 21 U.S.C. 8 467e (2000) (stating that state may not impose labeling
requirements in addition to or different than federal requirements); 21 U.S.C. § 678 (2000) (same).

        You ask finally whether chapter 150, subchapter B of the Agriculture Code violates the
Commerce Clause. See Request Letter, supra note 1, at 1. We presume you are particularly
concerned about section 150.012, which forbids a state agency or political subdivision to “purchase
beef or a product consisting substantially of beef that has been imported from outside the United
States.” TEX. AGRIC.CODE ANN. 5 150.012(a) (Vernon Supp. 2002). When a state participates in
the market as a consumer, it is not subject to Commerce Clause restraints. See White v. Mass.
Council of Constr. Employers, Inc., 460 U.S. 204,207-08 (1983). We accordingly believe that a
court would conclude that section 150.012 does not violate the Commerce Clause.

         Chapter 150 of the Agriculture Code, entitled “Imported Meat,” comprises two subchapters,
see TEX. AGRIC. CODE ANN. §§ 150.001-.012 (Vernon Supp. 2002), and you question the
constitutionality of each of them. Subchapter A, consisting of sections 150.001 through 150.003,
applies to the sale of imported fresh meat and forbids a person knowingly to sell at wholesale or at
a retail store imported fresh meat that does not comply with section 150.002. See id. 5 150.002(a);
see also id. 8 150.001 (defining terms). Section 150.002 requires imported fresh meat to be labeled
or branded with the country of origin:

                    (a) A person may not knowingly sell at wholesale or at a retail
               store any imported fresh meat unless the person complies with the
               requirements prescribed by this section.

                    (b) The requirements of Subsections (c) and (d) of this section
               apply only to imported fresh meat offered for sale at wholesale or at
               a retail store.

                   (c) A label or brand shall be placed on each quarter, half, or
               whole carcass of imported fresh meat and on each individually
               wrapped or packaged cut or other part of imported fresh meat.

                    (d) A label or sign shall be placed on each tray or case in which
               unwrapped or unpackaged cuts or slices of imported fresh meat are
               displayed for selection by a patron and on each tray or other container
               in which imported fresh meat, including hamburger, ground meat, or
               sausage, is displayed in bulk.
Eduardo J. Sanchez, M.D., M.P.H.      - Page 3         (JC-053 1)




                    (e) The label, brand, or sign must contain the words “Product of
                           ” (nation of origin of the imported fresh meat) or other
                words clearly indicating the nation of origin. The label or sign for
                imported fresh meat described by Subsection (d) must be conspicuous
                and legible.

Id. 8 150.002. A person who “knowingly violates” section 150.002 commits a criminal offense. Id.
§ 150.003(a), (b). Subchapter B, consisting of sections 150.011 through 150.012, applies to the
purchase of imported beef by state agencies and political subdivisions. See id. 6 150.012; see also
id. 5 150.011 (defining terms). Under section 150.012, a state agency or political subdivision may
not purchase imported beef: “A state agency or political subdivision may not purchase beef or a
product consisting substantially of beef that has been imported from outside the United States.” Id.
8 150.012(a).

         The Department is charged with enforcing sections 150.002 and 150.012.                See id.
$9 150.003(c), .012(b), (c). Y ou indicate that the Department has not adopted rules for subchapter
A, but the Texas Board of Health has adopted rules for subchapter B, which are found in title 25 of
the Texas Administrative Code, chapter 229, subchapter C. See Request Letter, supra note 1, at 1;
see also 25 TEX. ADMIN. CODE ch. 229, subch. C (2002) (Dep’t of Health, Food and Drug). Under
title 25, section 229.32 of the Texas Administrative Code, a state agency’s or political subdivision’s
purchasing official must require the vendor and all previous buyers or sellers of a beef product to
certify that the product is not imported. See id. 8 229.32(a), (b).

         The Commerce Clause, article I, section 8, clause 3 of the United States Constitution,
empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes.” U.S. CONST. art. I, 5 8, cl. 3. You observe that “[wlhile the clause is
phrased as an affirmative grant of power, it has a ‘negative’ or ‘dormant’ aspect that restricts” a
state’s power to enact a law that interferes with interstate or foreign commerce. Request Letter,
supra note 1, at 2; accord Tex. Att’y Gen. Op. Nos. JC-0093 (1999) at 5 (noting that Commerce
Clause has been interpreted to contain “a further, negative command known as the dormant
Commerce Clause”); JM-1258 (1990) at 5 (stating that Commerce Clause has been interpreted not
only to confer power on federal government to regulate commerce, but also to limit states’ powers
to interfere with commerce).         “The negative or dormant implication of the Commerce Clause
prohibits state . . . regulation . . . that discriminates against or unduly burdens interstate commerce
and thereby ‘imped[es] free private trade in the national marketplace.“’ Gen. Motors Corp. v. Tracy,
5 19 U.S. 278,287 (1997) (quoting Reeves, Inc. v. Stake, 447 U.S. 429,437 (1980)). A state may
adopt a regulation that protects its residents’ health and safety, but if the regulation “discriminates
against out-of-state interests by drawing geographical distinctions between entities that are otherwise
similarly situated, such facial discrimination will be subject to a high level of judicial scrutiny.”
Tracy, 5 19 U.S. at 306, 307 n-15. The courts also recognize that the Commerce Clause does not
prohibit a state “from participating in the market and exercising the right to favor its own citizens
over others.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810 (1976); Dan T. Coenen,
Eduardo J. Sanchez, M.D., M.P.H.      - Page 4          (JC-053 1)




Untangling the Market-Participant    Exemption to the Dormant Commerce Clause, 88 MICH. L. REV.
395,401 (1989).

        The United States Supreme Court has provided a method for analyzing a state regulation
under the negative Commerce Clause:

                          [T]he first step in analyzing any law subject to judicial
                scrutiny under the negative Commerce Clause is to determine
                whether it “regulates evenhandedly with only ‘incidental’ effects on
                interstate commerce, or discriminates against interstate commerce.”
                Hughes [v. Oklahoma], 441 U.S. [322], 336 [(1979)]. As we use the
                term here, “discrimination” simply means differential treatment of in-
                state and out-of-state economic interests that benefits the former and
                burdens the latter. If a restriction on commerce is discriminatory, it
                is virtuallyper se invalid. By contrast, nondiscriminatory regulations
                that have only incidental effects on interstate commerce are valid
                unless “the burden imposed on such commerce is clearly excessive in
                relation to the putative local benefits.” Pike v. Bruce Church, Inc.,
                397 U.S. 137, 142 (1970).

Or. Waste Sys., Inc. v. Dep ‘t ofEnvt1. Quality, 5 11 U.S. 93,99 (1994) (citations generally omitted).

         State labeling statutes substantially similar to section 150.002 of the Agriculture Code have
repeatedly been held to contravene the Commerce Clause. In Armour and Co. v. Nebraska, a federal
district court held unconstitutional a Nebraska statute, which the opinion refers to as “LB 169,” that
required a meat product containing any imported meat to be labeled with the name of “‘the country
of its origin, in letters not less than one quarter of an inch in height, and date of exportation,
regardless of the place of packaging . . . and date of packaging if sterile-packaged         outside the
boundaries of the United States.“’ Armour & Co. v. Neb., 270 F. Supp. 941,942 (D. Neb. 1967) (per
curiam) (mem.) (quoting Nebraska statute). According to the court, LB 169 was similar to other
laws, also adopted in the mid-1960s that had been held unconstitutional:

                LB 169 is one of a series of state labeling statutes enacted during the
                last few years in relation to the sale of imported meat. Constitutional
                challenge has heretofore been made against three of these statutes,
                and each of them has been declared by a federal three-judge district
                court to be violative of the Commerce Clause, Art. I, Sec. 8 of the
                Constitution of the United States. Tupman Thurlow Co. v. Moss, 252
                F. Supp. 641 [(M.D. Term. 1966)]; Ness Produce Co. v. Short, 263 F.
                Supp. 586 [(D. Or. 1966)]; Int’l Packers Ltd. v. Hughes, 271 F. Supp.
                430 [(S.D. Iowa 1967)]. The decision involving the Oregon statute
                was appealed to and was affirmed by the Supreme Court, per curiam,
                in Short v. Ness Produce Co., 385 U.S. 537 (1967).
Eduardo J. Sanchez, M.D., M.P.H.       - Page 5          (JC-053 1)




Id. at 943 (footnotes and citations generally omitted). In the view of the federal district court, a
“labeling requirement that imported meat be identified ‘as a foreign product and naming the country
of its origin’. . . was ‘exceedingly burdensome”’ and onerous. Id. at 944 (quoting Tupman Thurlow
Co., 252 F. Supp. at 645). And, after examining the legislative history, the Nebraska court found
that the law was intended not to protect Nebraskans’ health and safety, but to protect domestic
producers and feeders of meat products.          See id. at 945. The court quoted a legislator’s
characterization of the bill as “an attempt ‘to . . . protect the biggest industry of this state”‘:

                The purpose of this bill is obvious. It’s discouraging use of imported
                beef from foreign countries and why? Because we want to protect the
                basic industry of this state. . . . [O]f course we want to create in the
                minds of the housewife who buys meat when she sees it’s imported
                meat that she doesn’t want to buy it.

Id. (quoting legislative history). While the court commended the Nebraska Legislature’s desire to
serve the interests of the state’s cattle industry, the court concluded that the unreasonable burden on
interstate commerce outweighed any legitimate state police-power interest. See id.

          As the Nebraska court stated, at least three other courts found that similar statutes requiring
 special labels for imported meat violated the Commerce Clause of the United States Constitution.
 In Ness Produce Co. v. Short, the United States District Court for the District of Oregon considered
 a state law, enacted in 1965, that required a seller of meat produced in a foreign country to label
 “each package, cut, and carcass of meat with the country of origin.” Ness Produce Co. v. Short, 263
F. Supp. 586,587 (D. Or.) (per curiam), afd, 385 U.S. 537 (1966) (per curiam). While the court
 admitted that “[sltate-imposed burdens on interstate commerce” may be valid “where the [s]tate acts
under its inherent police power to protect the life, liberty, health[, J or property of its citizens,” the
 court found an insufficient police-power interest. See id. at 588. Moreover, the court found that the
 statutory labeling requirements did not relate to the product’s quality, “but only to its place of
 origin.” Id. The United States District Court for the Middle District of Tennessee similarly
 concluded that a Tennessee labeling act requiring a seller of imported meat or “meat foods” to label
the product and identify “its foreign origin” was unconstitutional.       Tupman Thurlow Co., 252 F.
 Supp. at 642. The Tennessee court found “no escape” from concluding that the labeling requirement
 imposed “unreasonable and discriminatory restrictions and burdens upon interstate and foreign
 commerce, and so run[s] afoul of the Commerce Clause.” Id. at 645; see also Int ‘I Packers Ltd. v.
Hughes, 271 F. Supp. 430, 433 (S.D. Ia. 1967) (mem.) (finding “no legitimate state interest
justifying the burden imposed upon interstate commerce by the Iowa Meat Labeling Act” and
 concluding that act violates Commerce Clause). But see Pac. Meat Co. v. Otagaki, 394 P.2d 618,
 623-24 (Haw. 1964) (concluding that state may, in exercise of its police power, require labels
 disclosing geographic origin of poultry sold to ultimate consumers).

         We conclude that a court would find that section 150.002 of the Agriculture            Code, in
particular, violates the Commerce Clause of the Federal Constitution and is unenforceable.      Because
Eduardo J. Sanchez, M.D., M.P.H.           - Page 6            (JC-053 1)




section 150.002 differentiates among meat and meat products solely on the basis of where they were
produced, we believe a court would conclude that it is discriminatory and per se invalid. See Or.
Waste Sys., Inc., 5 11 U.S. at 99.

         Moreover, we do not believe a court would find that the state had a police-power interest in
adopting the law sufficient to except it from typical Commerce Clause requirements.             See Gen.
Motors Corp., 519 U.S. at 306, 307 n.15. Although legislative history of chapter 150, subchapter
A of the Agriculture Code is unavailable due to the statute’s age, the session law itself and
contemporaneous     news reports indicate that the intent of the Texas labeling requirement was not
primarily aimed at protecting the public health and safety.2 The substance of the statute was first
adopted in 1965, see Act of Mar. 8,1965,59th Leg., R.S., ch. 32, $0 l-4, 1965 Tex. Gen. Laws 88,
88, which, we note, places it within that period of time during which the Nebraska case, Armour and
Co. v. Nebraska, indicated that several states adopted similar statutes related “to the sale of imported
meat.” See Armour & Co., 270 F. Supp. at 943. The emergency clause of the original act does not
specifically mention the public health and safety as a reason that the bill cannot be read in each
House on three consecutive days: “The fact that the people of this state are not aware of the extent
to which imported meat is being sold in this state, and the fact that there is presently no way for a
person to know whether or not he is buying imported meat, . . . create[s] an emergency.” Act of Mar.
8, 1965, 59th Leg., R.S., ch. 32, 8 6, 1965 Tex. Gen. Laws 88, 88-89.                   Additionally,    a
contemporaneous     newspaper article reports that the House sponsor of the 1965 Texas act justified
the labeling requirement as follows: “‘We are not keeping beef out of here, we are just labeling it
so housewives will know what it is.“’ Origin Labeling Left in House Meat Import Bill, HOUSTON
POST, Mar. 4, 1965 (quoting Rep. Steve Burgess); see also Bill Requires Imported Beef Be So
Labeled, AUSTIN STATESMAN, Mar. 8, 1965 (“Texas legislators said today housewives must be
warned if they are buying steaks from Australia or off a fat steer from the ranch next door.“); cf:
Senate Passes Bill on Imported Fresh Meats, HOUSTON POST, Jan. 29,1965 (reporting that Senator
Dorsey Hardeman, who sponsored bill, “claims the bill is designed to protect the buyer”). These
comments, reminiscent of the legislative discussions summarized in the Nebraska case we have
discussed, lead us to believe that a court would find that any health and safety interest that is served
by the Texas statutory labeling requirement is outweighed by the unconstitutional discrimination
against foreign products.

         Given our conclusion that a court would find section 150.002 of the Agriculture Code
unconstitutional,  we believe the remainder of chapter 150, subchapter A, consisting of sections
150.001 and 150.003, is without effect. Section 150.001 defines terms for the purposes of the
subchapter. See TEX.AGRIC.CODE ANN. 9 150.001 (Vernon Supp. 2002). Section 150.003 provides
a criminal penalty for violations of section 150.002. See id. § 150.003. While the original 1965 act
provides that the sections are severable, it limits the severability only to those provisions that can



         2See also L etter from Honorable    Susan Combs, Texas Commissioner          of Agriculture,   to Honorable
John Comyn, Texas Attorney General, at 2 (Jan. 17,2002) ( asserting that state law’s purpose “is to ensure that Texas
consumers . . . are permitted to make free market choices between different producers of fresh meat”) [hereinafter
Commissioner of Agriculture’s Brief).
Eduardo J. Sanchez, M.D., M.P.H.      - Page 7         (JC-053 1)




be effectuated without the invalid provision. See Act of Mar. 8, 1965,59th Leg., R.S., ch. 32, 8 5,
1965 Tex. Gen. Laws 88, 88. In our opinion, the remaining sections of subchapter A cannot be
effectuated without the labeling requirement, which is found in section 150.002.

         Because we conclude that the labeling requirement would likely be found unconstitutional
under the Commerce Clause, we do not resolve the preemption issue you raise. We note, however,
that both the federal Meat Inspection Act, 21 U.S.C. chapter 12, subchapter I, and the federal Poultry
Products Inspection Act, 21 U.S.C. chapter 10, expressly preempt state laws imposing label
requirements in addition to the federal requirements. Section 678’21 U.S.C., prohibits a state from
imposing any labeling requirements in addition to, or different than, those made under 21 U.S.C.
chapter 12, subchapter I. See 21 U.S.C. 5 678 (2000); see also id. 4 601 (o), (p) (defining “label” and
“labeling”).   Section 467e, 21 U.S.C., likewise forbids a state to impose labeling requirements
“in addition to, or different than those made under” chapter 10. See 21 U.S.C. § 467e; see also id.
9 453(s) (defining “label”). Both statutes require the products to which they apply, after inspection
and approval, to bear two pieces of information:        (A) the name and place of business of the
manufacturer, packer, or distributor; and (B) “an accurate statement of the quantity of the” product
or contents “in terms of weight, measure, or numerical count.” Id. $8 453(h)(5), 457(a), 601(n)(5),
607(b). Under the Supremacy Clause, article VI of the United States Constitution, the laws of the
United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.”    U.S. CONST.art. VI, cl. 2. State law that conflicts with
federal law is preempted and “‘without effect.“’ Cipollone v. Liggett Group, 505 U.S. 504, 516
(1992) (citing M ‘Culloch v. Maryland, 17 U.S. 3 16 (18 19)) (quoting Maryland v. Louisiana, 45 1
U.S. 725, 746 (1981)).

        A brief we have received from the Commissioner of Agriculture avers that the state labeling
law “affirmatively serve[s] the purposes of’ the North American Free Trade Agreement and federal
laws other than those you have explicitly asked about. Commissioner of Agriculture’s Brief, supra
note 2, at 2. We did not receive additional citations or briefing on these issues, and we are unaware
of other federal statutes that may require a different result. For this reason, we limit our answer to
the constitutional and statutory provisions about which you have asked and generally do not consider
the North American Free Trade Agreement and other federal laws to which the Commissioner of
Agriculture may refer.

        Nevertheless, we note that Congress recently has adopted amendments to the Agricultural
Marketing Act of 1946, 7 U.S.C. ch. 38, that will require “a retailer of a covered commodity” to
“inform consumers, at the final point of sale . . . , of the country of origin of the covered
commodity.”     Pub. L. No. 107-171, 5 108 16, sec. 282(a)(l), 116 Stat. 134, 534 (2002) (to be
codified at 7 U.K.    4 1638a). The term “covered commodity” generally means:

               (i) muscle cuts of beef, lamb, and pork;

               (ii) ground beef, ground lamb, and ground pork;
Eduardo J. Sanchez, M.D., M.P.H. - Page 8               (JC-053 1)




                (iii) farm-raised fish;

                (iv) wild fish;

                (v) a perishable agricultural commodity;    and

                (vi) peanuts.

Id. sec. 281(2)(A), 116 Stat. 134,533 (2002); see also id. sec. 281(2)(B), 116 Stat. 134,533 (2002)
(listing exclusions). This requirement applies to retail sales occurring September 30,2004, or later.
See id. sec. 285,116 Stat. 134,535 (2002). Additionally, the United States Secretary of Agriculture
must issue guidelines for “voluntary country of origin labeling” by September 30,2002. See id. sec.
284(a), 116 Stat. 134, 535 (2002) (to be codified at 7 U.S.C. 1638~).

         We conclude, in answer to your second question, that a court would find that section 150.012
of the Agriculture Code, which prohibits a state agency or political subdivision from purchasing
“beef or a product consisting substantially of beef that has been imported from outside the United
States,” TEX. AGRIC. CODE ANN. 0 150.012(a) (Vernon Supp. 2002)’ is consistent with the
Commerce Clause. The judiciary has long interpreted the dormant Commerce Clause not to apply
to a state in its role as a “market participant,” as opposed to a “market regulator.” See, e.g., Coil.
Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 685 (1999); Camps
NewfoundIOwatonna,        Inc. v. Town of Harrison, 520 U.S. 564,592 (1997); White v. Mass. Council
of Constr. Employers, Inc., 460 U.S. 204,207-08 (1983); Dan T. Coenen, Untangling the Market-
Participant Exemption to the Dormant Commerce Clause, 88 MIN. L. REV. 395,397 (1989). Thus,
where a state participates in the private market, it may prefer goods or services of its own citizens,
“even though it could not do so while” regulating the market. Coil. Sav. Bank, 527 U.S. at 685.
Insofar as the state agencies and political subdivisions are purchasing beef or beef products with state
or local public funds, they are acting as market participants and entitled to be treated as such. C$
 White, 460 U.S. at 214.
Eduardo J. Sanchez, M.D., M.P.H.    - Page 9         (JC-0531)




                                      SUMMARY

                      A court probably would conclude that chapter 150, subchapter
              A of the Agriculture Code, which requires imported meat to be
              labeled with the country of origin, violates the Commerce Clause,
              article I,section 8, clause 3, of the United States Constitution.  See
              U.S. CONST. art. I, 6 8, cl. 3; TEX.AGRIC.CODE ANN. ch. 150, subch.
              A (Vernon Supp. 2002). The Texas Department of Health, which is
              charged with enforcing the labeling requirement, has not adopted any
              rules implementing      chapter 150, subchapter A. Beginning on
              September 30, 2004, however, federal law will require retailers of
              certain meat products to “inform consumers . . . of the [product’s]
              country of origin.” Farm Security and Rural Investment Act of 2002,
              Pub. L. No. 107-171, 6 10816, 116 Stat. 134, 534 (2002) (to be
              codified at 7 U.K. $5 1638-1638d). And, by September 30,2002,
              the United States Secretary of Agriculture will issue guidelines for
              “voluntary country of origin labeling.” See id. sec. 284(a), 116 Stat.
              134,535 (2002) (to be codified at 7 U.S.C. 1638~). Being a federal
              law, as opposed to a state law, this provision would not be subject to
              a Commerce Clause objection and would ultimately appear to
              accomplish the same result sought by the state statute in question.

                       On the other hand, a court probably would conclude that
              chapter 150, subchapter B of the Agriculture Code does not violate
              the Commerce Clause of the United States Constitution.        See U.S.
              CONST. art. I, 8 8, cl. 3; TEX. AGRIC. CODE ANN. ch. 150, subch. B
              (Vernon Supp. 2002). Section 150.012 of the Agriculture Code,
              part of chapter 150, subchapter B, forbids a state agency or political
              subdivision to purchase imported beef or products using imported
              beef,TEX. AGRIC.CODE ANN. 8 150.012(a) (Vernon Supp. 2002), and
              is an example of the state participating in the market as a consumer.
              See White v. Mass. Council of Constr. Employers, Inc., 460 U.S. 204,
              207-08 (1983).




                                             Attorney General of Texas
Eduardo J. Sanchez, M.D., M.P.H.   - Page 10    (JC-053 1)




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
