Mr. Justice WHITE, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting in No. 45.
This is the second time this case has come before the Court. In Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed. 568, the case was here for review of dismissal of the complaint for want of jurisdiction. The Court reversed and remanded for trial and the case is now here on the merits, after the three-judge District Court refused to enjoin the appellee state officers from enforcing § 792 of the California Agricultural Code against the appellant growers. 197 F.Supp. 780, probable jurisdiction noted, 368 U.S. 964, 965, 82 S.Ct. 439, 437, 7 L.Ed.2d 394. In view of the Court's disposition of the matter today, it is probable that this case like a revenant will return to us within another few Terms with a still more copious record.
Appellants grow, package, and market Florida avocados in interstate commerce, subject to the applicable provisions of § 8c of the Agricultural Adjustment Act, as amended, 7 U.S.C. § 608c, and the regulations of the Secretary of Agriculture promulgated thereunder. An average of 6.4% of the Florida avocados shipped to California each year are barred for failure to satisfy the requirements of California Agricultural Code § 792, which provides in pertinent part that '(a)ll avocados, at the time of picking and at all times thereafter, shall contain not less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.' Appellants based their claim for relief upon the Equal Protection Clause of the Fourteenth Amendment, the Commerce Clause, and the Supremacy Clause. Since we in the minority have concluded that the Agricultural Adjustment Act and regulations promulgated thereunder leave no room for this inconsistent and conflicting state legislation, we reach only the Supremacy Clause issue.
The California statute was enacted in 1925, when, according to the District Court, practically all the avocados in the United States came from that State. 197 F.Supp., at 782. The purpose of this legislation was to prevent the marketing of immature avocados, which never ripen properly, but decay or shrivel up and become rubbery and unpalatable after purchase by the consumer. Ibid. The effect of marketing immature avocados is to 'cheat the consumer,' and thus have 'a bad (economic) effect upon retailers and producers as a whole, since it increases future sales resistance' against buying avocados. Id., at 783.
In 1925, when the state law was enacted, most of the avocados grown in California were, as they are at the present time, from trees derived from Mexican varieties. Such avocados contain at least 8% oil when mature. The Florida avocado growers, however, the only substantial competitors of the California growers, 197 F.Supp., at 787, n. 8, depend in substantial part on trees of non-Mexican parentage. The Florida avocados involved here, hybrid and Guatemalan varieties, may reach maturity and be acceptable for marketing, at least under federal standards, prior to reaching an 8% oil content.
There is expert opinion to the effect that the best gauge of maturity is the percentage of oil contained in the fruit. Id., at 783. California has adopted that physical-chemical test in § 792. There is also expert opinion that the best test of maturity is the date on which the fruit is picked, and its size and weight at such time. Ibid. The United States Secretary of Agriculture has adopted that test for measuring maturity of avocados for ripening, and has specifically rejected as unsatisfactory all physical and chemical tests. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425 (Dept.Agr.Dkt. No. AO-254). The District Court found the California oil test to be of the latter type.
The Agricultural Adjustment Act, § 8c, 7 U.S.C. § 608c, provides that, whenever the Secretary 'has reason to believe that the issuance of an order will tend to effectuate the declared policy' of the Act, which is 'to establish and maintain such minimum standards of quality and maturity * * * (for fruit) in interstate commerce as will effectuate * * * (the) orderly marketing of * * * agricultural commodities as will be in the public interest,' § 2(3), 7 U.S.C. § 602(3), he shall give notice for and hold a hearing upon a proposed order. In the case of fruits, § 8c(6)(A) provides that the Secretary may limit or provide methods for the limitation of quality of produce 'which may be marketed in or transported to any or all markets in the current of interstate or foreign commerce * * *', or affecting commerce, during any specified period.