   OPFlCE   OP   THE   ATTORNEY   GENER*L   STATE   OF   TEXAS

   JOHN      CORNYN




                                                    February 26,1999



William R. Archer III, M.D.                                      Opinion No. JC-0007
Commissioner of Health
Texas Department of Health                                       Re: Whether the federal Nutrition Labeling and
1100 West 49th Street                                            Education Act of 1990 preempts Texas Health and
Austin, Texas 78756-3199                                         Safety Code section 434.007 (RQ-1202)


Dear Commissioner            Archer:

        Your predecessor in office asked whether the federal Nutrition Labeling and Education Act
of 1990 preempts Texas Health and Safety Code section 434.007, a state statute establishing
mandatory standard weights for bread loaves. We limit ourselves to your predecessor’s precise
query. We address only Health and Safety Code section 434.007 and not any of the other provisions
in Health and Safety Code chapter 434 governing the manufacture ofbread. Nor do we address the
preemptive effect of any federal law other than the Nutrition Labeling and Education Act of 1990.
Finally, we express no opinion regarding whether section 434.007 is an otherwise valid or
enforceable statute. Applying preemption standards developed by the United States Supreme Court
and followed by courts of this state, we conclude that the federal provision you ask about does not
preempt the state statute, at least as a matter of law.

       We begin with a brief review of the state and federal statutes at issue.                 The state statute,
Health and Safety Code section 434.007, provides in pertinent part as follows:

                      (a) Loaves of bread made by persons in the business of wholesaling          and
                 retailing bread must comply with the weight standards in this section.

                       (b) The standard weights for a loaf of bread are:

                           (1) one pound;

                           (2) 1 % pounds; or

                           (3) any other multiple of one pound.

                     (c) This section does not prohibit the sale of bread slices in properly
                 labeled packages weighing eight ounces or less.
The Honorable William R. Archer III, M.D. - Page 2                     (JC-0007)




                 (d) Variations in the weight standard may not exceed one ounce a pound
             within 24 hours after baking.

TEX. HEALTH & SAFETY CODE ANN. $434.007(a)-(d) (V ernon 1992). Violation of this provision
is an offense “punishable by a tine ofnot less than $25 or more than $200.” Id. 4 434.008. The first
of the statutory predecessors to section 434.007 dates from the beginning of this century.’ Similar
statutes were enacted in many states “to prevent fraud on the public in the sale of bread” and “to
prevent unfair competition among dealers.” 35 AM. JUR. 2D Food 5 34 (1967) (weight of loaves).2
As this oftice stated in a 1957 opinion, “[tlhe purpose for prescribing standard weights for loaves
of bread is to prevent the vendor from selling loaves of similar size as those of a larger size.” Tex.
Att’y Gen. Op. No. WW-290 (1957) at 2. Texas is not alone in continuing to prescribe bread loaf
weight standards. A number of other states maintain similar statutes. See, e.g., CONN. GEN. STAT.
3 21a-154 (1994); IDAHO CODE 3 71-236 (Supp. 1998); IOWA CODE 5 210.19 (1994); hkss. GEN.
LAWS ch. 94, 4 7 (1997); MONT. CODE ANN. $ 30-12-402 (1997); NEV. REV. STAT. 5 581.370
(1994).


        Federal statutes regulating food standards and labeling are codified in chapter 9 of title 21
of the United States Code, the Federal Food, Drug, and Cosmetic Act. Section 341 of title 21
authorizes the Secretary of Health and Human Services to promulgate regulations establishing
standards of identity, i.e., ingredients for food products and standards of fill of food containers.
Section 343 governs the labeling of food products. Much like the state statutes governing the weight
of bread loaves, the original purpose of these federal provisions was to protect consumers. See
generally Federal Sec. Adm ‘r v. Quaker Oats Co., 318 U.S. 218,230-35 (1943).

        Under the Supremacy Clause ofthe United States Constitution, the laws ofthe United States
are “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. In determining whether a federal statute
preempts state law, Texas courts are “bound to give effect to the will of Congress,” Worthy Y.
Collagen Corp., 967 S.W.2d 360,367 (Tex. 1998), and follow guidelines established by the United
States Supreme Court to divine congressional     intent.   The Texas Supreme Court recently
summarized those guidelines as follows:

              A state law is preempted and “without effect” if it conflicts with federal law.
              A federal law may expressly preempt state law. Additionally, preemption
              may be implied if the scope of the statute indicates that Congress intended
              federal law to occupy the field exclusively or when state law actually
              conflicts with federal law. A state law presents an actual conflict with federal



         ‘The Revisor’s Note to Health and Safety Code section 434.007 indicates that the provision’s first statutory
predecessor was in the Revised Civil Statutes of 1911.

          2Most of the state statutes survived constitutional challenges. Compare P.F. Petersen Baking Co. v. Bryan,
 290 US. 570 (1934) (upholding state statute limiting variations in permitted weight ofbread loaves to three ounces per
 pound within 12 hours after cooling) with Jay Bums Baking Co. Y. Bryan, 264 U.S. 504 (1924) (striking down statute
 limiting variations in permitted weight of bread loaves to two mmces per pound for 24 hours after baking).
The Honorable   William R. Archer III, M.D. - Page 3               (JC-0007)




           law when “‘it is impossible for a private party to comply with both state and
           federal requirements’ or where state law ‘stands as an obstacle to the
           accomplishment     and execution of the full purposes and objectives of
           Congress.“’

Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1,4 (Tex. 1998) (citations omitted).

         First, we consider whether the federal Nutrition Labeling and Education Act of 1990
expressly preempts state law. The 1990 statute amended the Federal Food, Drug, and Cosmetic Act
to include the following relevant provisions regarding federal preemption:

           [N]o State or political subdivision of a State may directly or indirectly
           establish under any authority or continue in effect as to any food in interstate
           commerce-

               (1) any requirement for a food which is the subject of a standard of
           identity established under section 341 of this title that is not identical to such
           standard of identity or that is not identical to the requirement of section
           343(g) of this title, .

                (2) any requirement for the labeling of food of the type required by
           section 343(c), 343(e) or 343(i)(2) of this title that is not identical to the
           requirement of such section,

                (3) any requirement for the labeling of food of the type required by
           section 343(b), (d), (f), (h), (i)(l) or(k) ofthis title that is not identical to the
           requirement of such section, . .

21 U.S.C. 5 343-1(a)(l)-(3) (1994). In addition, Congress included the following proviso regarding
preemption in section 6(c) of the federal Nutrition Labeling and Education Act of 1990: “The
Nutrition Labeling and Education Act of 1990 shall not be construed to preempt any provision of
State law, unless such provision is expressly preempted under section 403A of the Federal Food,
Drug, and Cosmetic Act,“3 the provision now codified as 21 U.S.C. 5 343-l

         We have examined the federal regulations regarding standards of identity and standards of
till promulgated under 21 U.S.C. 5 341 and have found no provision expressly prescribing or
precluding weight standards for loaves of bread. See 21 C.F.R. pts. 130 (general food standards),
 136 (governing ingredients and labeling of bakery products, including bread) (1998). We have also
examined the federal statute governing misbranded food and nutrition labeling, 21 U.S.C. 5 343.
Again, we found no provision expressly prescribing or precluding standard weights for loaves of
bread. Title 21 U.S.C. 5 343(e) requires a package to bear a label containing an accurate statement
of quantity, which may be stated in terms of weight, and provides for reasonable variations. Title



        ‘Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353, 5 6(c)(l) (1990)
The Honorable William R. Archer III, M.D. - Page 4            (JC-0007)




21 C.F.R. $ 101.105 requires the display panel of a product to bear a declaration of the net quantity
of contents and specifically dictates how declarations of weight must be expressed, see 21 C.F.R.
5 101.105(k) (1998). Theregulationrequiresthat    thedeclarationofquantitybe     accurate, but permits
reasonable variations caused by loss or gain of moisture. See id. 5 101.105(q). Neither the statute
nor the regulation dictates standard weights for loaves of bread. Given the absence of a federal
statutoryprovisionorregulationunder21      U.S.C. 5s 341 and343 expresslyprescribingorprecluding
standard weights for loaves ofbread, we believe that Health and Safety Code section 434.007 is not
expressly preempted by the federal Nutrition Labeling and Education Act of 1990.

         An express preemption provision may, but does not necessarily, foreclose implied
preemption. See Hyundai Motor Co., 974 S.W.2d at 9. Thus, we also consider whether preemption
ofthe state statute may be implied. Your predecessor in office contended that the Health and Safety
Code provision requiring loaves of bread to comply with state weight standards is preempted by the
federal statute because federal law requires a bread label to reflect accurate weight and “occupies the
field in question.” We disagree. First, we believe that the express preemption statement of Congress
in section 6(c) of the federal Nutrition Labeling and Education Act of 1990 (that the act shall not be
construed to preempt any provision of state law unless that provision is expressly preempted)
indicates that Congress did not intend to occupy the field. See id. at 10 (stating with respect to the
National Traffic and Motor Vehicle Safety Act of 1966 that “[b]y limiting the Act’s express
preemption clause to instances in which the Secretary has adopted a safety standard, Congress
implicitly left the states free to enforce their own standards in the interstices.“).     Furthermore,
because no federal statute or regulation dictates standard weights for loaves of bread, it seems
possible for a person to comply with federal labeling requirements and regulations regarding
standards of identity and standards of till, on the one hand, and the state weight standards, on the
other.

          Finally, it does not appear that the enforcement ofthe state weight standards would interfere
with the enforcement of the federal statutes and regulations. For this reason, we do not believe that
the state statute “stands as an obstacle to accomplishment      and execution of the full purposes and
objectives ofCongress.” Jones Y. Rath Packing Co., 430 U.S. 519,526 (1977). We note, however,
that a court, in making the determination whether a state law stands as an obstacle to the objectives
of Congress, would “consider the relationship between state and federal laws as they are interpreted
and applied, not merely as they are written.” Id. In Ruth Packing Co., for example, food packagers
asserted that California state laws governing food package weights and labeling were preempted by
 federal law. The state laws at issue provided that the average weight ofpackages in a lot not be less
than the weight stated on the package. The federal law at issue, 21 U.S.C. 5 343(e), required
packages to bear a label containing an accurate statement of weight but allowed “reasonable
 variations.” The Court held that the state provisions were preempted because of the possible effect
 of the different rules on the packaging practices of manufacturers who distribute within the state
 versus those who distribute nationally and the impact of inconsistent practices on consumers’ ability
 to make value comparisons.       See Ruth Packing Co., 430 U.S. at 542-43. Here, federal law allows
 reasonable deviations in stated bread weights, see 21 C.F.R. 5 101.105(q) (1998), whereas Health
The Honorable      William R. Archer III, M.D. - Page 5                 (JC-0007)




and Safety Code section 434.007 limits variations in the weight standard to one ounce a pound
within twenty-four hours after baking, see TEX. HEALTH & SAFETY CODE ANN. $434.007(d) (Vernon
1992). A trier of fact could assess the practical consequences of these differences, if any. This office
does not make fact findings, however, and cannot determine whether enforcement of section 434.007
would interfere, as a matter of fact, with the goals of the federal law.

         In sum, we do not believe that the federal Nutrition Labeling and Education Act of 1990
preempts Health and Safety Code section 434.007, at least as a matter of law. We acknowledge that
the state law, which was enacted to protect consumers from deception and fraud in an earlier era,
may be an anachronism in light of comprehensive federal labeling requirements and changes in bread
packaging over the course of the century.4 It is for the legislature, not this office, however, to make
that policy judgment and repeal the statute if it chooses to do so.




          ‘As this office noted, when the 1921 stahltory predecessor to section 434.007 was enacted, “practically all the
 bread offered for sale was sold in a solid, uncut IX undivided loaf and sold by the pound and other multiples of a pound
 and sold as an unwrapped product. The wrapping of bread with labels on the wrapper descriptive of the contents was
 unknown at that time       .” Tex. AR’), Gen. Op. No. C-450 (1965) at 2.
The Honorable   William R. Archer III, M.D. - Page 6      (JC-0007)




                                      SUMMARY

                The federal Nutrition Labeling and Education Act of 1990, 21 U.S.C.
           ?j 343-1(a) (1994), does not preempt Texas Health and Safety Code section
           434.007, which establishes standard weights for bread loaves, at least as a
           matter of law.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General
