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424 U.S. 366 96 S.Ct. 923 47 L.Ed.2d 55 The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Appellant, v. Hugh B. COTTRELL, Health Officer, State of Mississippi. No. 74-1148. Argued Dec. 1, 1975. Decided Feb. 25, 1976. Syllabus A Mississippi regulation provides that milk and milk products from another State may be sold in Mississippi only if the other State accepts milk or milk products produced and processed in Mississippi on a reciprocal basis. Appellant's application for a permit to distribute for sale at its retail outlets in Mississippi milk and milk products from its Louisiana processing plant was denied solely on the ground that Louisiana had not signed a reciprocity agreement with Mississippi as required by the regulation. Appellant then brought suit claiming that the regulation violated the Commerce Clause, but a three-judge District Court upheld the regulation as a valid exercise of state police powers, even though it incidentally burdened interstate commerce. Held: The mandatory character of the regulation's reciprocity requirement unduly burdens the free flow of interstate commerce in violation of the Commerce Clause and cannot be justified as a permissible exercise of any state power. Pp. 370- 381. (a) Only state interests of substantial importance can save the regulation in the face of its devastating effect upon the free flow of interstate milk by in practical effect, though not in absolute terms, excluding from Mississippi wholesome milk produced in Louisiana. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. Pp. 372-375. (b) The reciprocity requirement cannot be justified as serving Mississippi's vital interests in maintaining the State's health standards, for even if

Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366 (1976)

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Filed: 1976-02-25Precedential Status: PrecedentialCitations: 424 U.S. 366, 96 S. Ct. 923, 47 L. Ed. 2d 55, 1976 U.S. LEXIS 91Docket: 74-1148Supreme Court Database id: 1975-037

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424 U.S. 366

96 S.Ct. 923

47 L.Ed.2d 55

The GREAT ATLANTIC AND PACIFIC TEA COMPANY,INC., Appellant,

v.Hugh B. COTTRELL, Health Officer, State of Mississippi.

No. 74-1148.

Argued Dec. 1, 1975.Decided Feb. 25, 1976.

Syllabus

A Mississippi regulation provides that milk and milk products fromanother State may be sold in Mississippi only if the other State acceptsmilk or milk products produced and processed in Mississippi on areciprocal basis. Appellant's application for a permit to distribute for saleat its retail outlets in Mississippi milk and milk products from itsLouisiana processing plant was denied solely on the ground that Louisianahad not signed a reciprocity agreement with Mississippi as required by theregulation. Appellant then brought suit claiming that the regulationviolated the Commerce Clause, but a three-judge District Court upheld theregulation as a valid exercise of state police powers, even though itincidentally burdened interstate commerce. Held: The mandatorycharacter of the regulation's reciprocity requirement unduly burdens thefree flow of interstate commerce in violation of the Commerce Clause andcannot be justified as a permissible exercise of any state power. Pp. 370-381.

(a) Only state interests of substantial importance can save the regulation inthe face of its devastating effect upon the free flow of interstate milk by inpractical effect, though not in absolute terms, excluding from Mississippiwholesome milk produced in Louisiana. Cf. Dean Milk Co. v. Madison,340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. Pp. 372-375.

(b) The reciprocity requirement cannot be justified as serving Mississippi'svital interests in maintaining the State's health standards, for even if

Louisiana's standards were lower than Mississippi's, such requirement ifmet permits Louisiana milk to be admitted to Mississippi if Louisianaenters into a reciprocity agreement. And even if the requirement enablesMississippi to assure itself that the reciprocating State's health standardsare the "substantial equivalent" of its own, Mississippi has available foraccomplishing that objective the alternative, substantially less burdensomeon commerce, of applying its own inspection standards to milk shipmentsfrom a nonreciprocating State. Pp. 375-378.

(c) Nor can the reciprocity requirement be justified as an economic "freetrade" measure, since it is "precisely the kind of hindrance to theintroduction of milk from other states . . . condemned as an 'unreasonableclog upon the mobility of commerce' " and " 'hostile in conception as wellas burdensome in result.' " Polar Ice Cream & Creamery Co. v. Andrews,375 U.S. 361, 377, 84 S.Ct. 378, 387, 11 L.Ed.2d 389. Pp. 378-381.

D.C., 383 F.Supp. 569, reversed and remanded.

Walter W. Christy, for appellant.

Heber A. Ladner, Jr., Jackson, Miss., for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

1 Section 11 of Mississippi's Regulation Governing the Production and Sale ofMilk and Milk Products in Mississippi, promulgated by the Mississippi StateBoard of Health (1967), provides, among other things, that "(m)ilk and milkproducts from . . . (another State) may be sold in . . . Mississippi . . . provided . .. that the regulatory agency (of the other State that) has jurisdiction acceptsGrade A milk and milk products produced and processed in Mississippi on areciprocal basis."1 The question presented by this case is whether Mississippi,consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution,2may, pursuant to this regulation, constitutionally deny a Louisiana milkproducer the right to sell in Mississippi milk satisfying Mississippi's healthstandards solely because the State of Louisiana has not signed a reciprocityagreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant'sCommerce Clause challenge, holding that "section 11 is within the permissiblelimits of state police powers even though it incidentally or indirectly involves orburdens interstate commerce." 383 F.Supp. 569, 575 (1974). We notedprobable jurisdiction of appellant's appeal, 421 U.S. 961, 95 S.Ct. 1949, 44L.Ed.2d 448 (1975). We reverse.3

II

2 * Appellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Marylandcorporation, owns and operates 38 outlets in Mississippi that engage in theretail sale of milk and milk products. A&P also operates at Kentwood, La., aplant for the processing of raw milk into milk and milk products for delivery toits retail outlets. A&P invested over $1 million in the Kentwood processingfacilities, intending that part of the dairy products produced at the facilitywould supply its retail outlets in Mississippi. However, A&P's application onAugust 28, 1972, to the Mississippi State Board of Health for a permit todistribute the products from its Kentwood facility for sale in Mississippi wasdenied by the Board because A&P failed to submit the reciprocal agreementbetween Louisiana and Mississippi required by § 11.4 Appellant thereuponbrought this action.

3 Evidence was stipulated before the District Court which conclusivelyestablished that the milk produced at the Kentwood plant fully complied withthe requirements of § 11 in all respects save the required reciprocity agreement.The Kentwood plant had received milk sanitation-compliance ratings in excessof 90% In all respects following each inspection by Louisiana officials. Thesesanitation-compliance ratings were published in the Sanitation Compliance andEnforcement Ratings of Interstate Milk Shippers, a list compiled by the PublicHealth Service and the Food and Drug Administration of the United StatesDepartment of Health, Education, and Welfare (HEW), which includes onlyprocessors receiving compliance ratings from state officials who have beencertified by the Public Health Service. Further, the parties stipulated that theSupervisor of the Milk Control Program of the Mississippi State Board ofHealth testified, on the basis of an inspection by Louisiana officials of theKentwood plant reported on an HEW form, that Kentwood milk would beacceptable in Mississippi as the Louisiana regulations were substantiallyequivalent to Mississippi's within the meaning of § 11. Thus only the lack of areciprocity agreement between the two States prevented appellant frommarketing its Kentwood milk at its Mississippi retail outlets.5

4 Mississippi's answer to appellant's Commerce Clause challenge is that thereciprocity requirement of § 11 is a reasonable exercise of its police power overlocal affairs, designed to assure the distribution of healthful milk products tothe people of its State. We begin our analysis by again emphasizing that "(t)hevery purpose of the Commerce Clause was to create an area of free tradeamong the several States." McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330,64 S.Ct. 1023, 1026, 88 L.Ed. 1304 (1944). And at least since Cooley v. Boardof Wardens, 12 How. 299, 13 L.Ed. 996 (1852), it has been clear that "the

Commerce Clause was not merely an authorization to Congress to enact lawsfor the protection and encouragement of commerce among the States, but by itsown force created an area of trade free from interference by the States. . . .(T)he Commerce Clause even without implementing legislation by Congress isa limitation upon the power of the States." Freeman v. Hewit, 329 U.S. 249,252, 67 S.Ct. 274, 276, 91 L.Ed. 265 (1946). It is no less true, of course, thatunder our constitutional scheme the States retain "broad power" to legislateprotection for their citizens in matters of local concern such as public health, H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531-532, 69 S.Ct. 657, 661-662, 93 L.Ed. 865 (1949), and that not every exercise of local power is invalidmerely because it affects in some way the flow of commerce between theStates. Freeman v. Hewit, supra, 329 U.S., at 253, 67 S.Ct., at 277; MilkControl Board v. Eisenberg Farm Products, 306 U.S. 346, 351-352, 59 S.Ct.528, 530-531, 83 L.Ed. 752 (1939). Rather, in areas where activities oflegitimate local concern overlap with the national interests expressed by theCommerce Clause where local and national powers are concurrent the Court inthe absence of congressional guidance is called upon to make "delicateadjustment of the conflicting state and federal claims," H. P. Hood & Sons, Inc.v. Du Mond, supra, 336 U.S. at 553, 69 S.Ct. at 679 (Black, J., dissenting),thereby attempting "the necessary accommodation between local needs and theoverriding requirement of freedom for the national commerce." Freeman v.Hewit, supra, 329 U.S., at 253, 67 S.Ct., at 277. In undertaking this task theCourt, if it finds that a challenged exercise of local power serves to further alegitimate local interest but simultaneously burdens interstate commerce, isconfronted with a problem of balance:

5 "Although the criteria for determining the validity of state statutes affectinginterstate commerce have been variously stated, the general rule that emergescan be phrased as follows: Where the statute regulates even-handedly toeffectuate a legitimate local public interest, and its effects on interstatecommerce are only incidental, it will be upheld unless the burden imposed onsuch commerce is clearly excessive in relation to the putative local benefits.Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d852. If a legitimate local purpose is found, then the question becomes one ofdegree. And the extent of the burden that will be tolerated will of coursedepend on the nature of the local interest involved, and on whether it could bepromoted as well with a lesser impact on interstate activities." Pike v. BruceChurch, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).6

6 Adjudication of Commerce Clause challenges to the validity of local milkregulations burdening interstate milk is not a novel experience for this Court.See, e. g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 84 S.Ct.

378, 11 L.Ed.2d 389 (1964); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct.295, 95 L.Ed. 329 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; MilkControl Board v. Eisenberg Farm Products, supra; Baldwin v. G. A. F. Seelig,Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935).

7 The District Court seems to have concluded that Dean Milk Co. v. Madison,supra, while especially pertinent to a decision upon the validity of thereciprocity provision of § 11, did not require the conclusion that therequirement rendered the section violative of the Commerce Clause. Wedisagree. Dean Milk involved a Madison, Wis., ordinance that forbade the saleof milk in the city unless it had been pasteurized and bottled at an approvedplant located within five miles of the center of the city. Although agreeing thatsanitary regulation of milk originating in remote areas is a " 'matter . . . whichmay appropriately be regulated in the interest of the safety, health and well-being of local communities,' " 340 U.S., at 353, 71 S.Ct., at 297, the Court heldthat the Madison ordinance could not withstand challenge under the CommerceClause, "even in the exercise of (the city's) unquestioned power to protect thehealth and safety of its people, if reasonable nondiscriminatory alternatives,adequate to conserve legitimate local interests, are available." Id., at 354, 71S.Ct., at 298. Inquiry whether adequate and less burdensome alternatives existis, of course, important in discharge of the Court's task of "accommodation" ofconflicting local and national interests, since any " 'realistic' judgment" whethera given state action "unreasonably" trespasses upon national interests must, ofcourse, consider the "consequences to the state if its action were disallowed."Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1, 22 (1940).

8 Dean Milk identified as adequate to serve local interests, and yet lessburdensome to the flow of interstate commerce, the alternatives of eitherinspection of the distant plants by city officials, or reliance on milk ratingsobtained by officials in localities having standards as high as those of Madison,the enforcement of which could be verified by reliance on the United StatesPublic Health Service's system of checking local ratings. This latter alternativereflected the recommendation of the United States Public Health Service basedon § 11 of the Model Milk Ordinance proposed by the Service, Dean Milk,supra, 340 U.S., at 355, n. 5, 71 S.Ct., at 298, that the local "health officerapprove milk or milk products from distant points without his inspection if theyare produced and processed under regulations equivalent to those of thisordinance, and if the milk or milk products have been awarded by the Statecontrol agency a rating of 90 percent or more on the basis of the Public HealthService rating method." The Illinois producer's milk involved in Dean Milk wasprocessed in plants inspected by the public health authorities in Chicago on thebasis of the Public Health Service rating method.

9 The District Court in the instant case acknowledged that "(i)nterestinglyenough Section 11 of the Mississippi regulation, but for the reciprocal clause, isidentical in every material aspect to Section 11 of the U. S. Public HealthService Ordinance" discussed in Dean Milk. 383 F.Supp., at 574. Accordingly,the District Court concluded that § 11 was "free of any constitutional infirmity,""insofar as it follows Section 11 of the U. S. Public Health Service MilkOrdinance." Id., at 575. The District Court held further that the reciprocityclause of Mississippi's § 11 not found in HEW's proposed Model MilkOrdinance § 11 did not constitute a sufficient burden on interstate commerce toviolate the Commerce Clause. Mississippi, said the District Court, mayconstitutionally "enforce its own standards, either through inspections at thesource of the processed milk, although such may require out-of-stateinspections, or through reciprocal agreements . . ." and "(a)s long as Mississippimutually exchanges standards of inspection with other states, there can be noburden on interstate trade." 383 F.Supp., at 575. Further, said the District Court,"Mississippi adopted the reciprocity clause to avoid the expense of out-of-stateinspections," id., at 576, and offers reciprocity to all States withoutdiscrimination.

10 The fallacy in the District Court's reasoning is that it attached insufficientsignificance to the interference effected by the clause upon the national interestin freedom for the national commerce, and attached too great significance to thestate interests purported to be served by the clause. Although not in terms anabsolute and universal bar to sales of out-of-state milk, which was the effect ofthe Madison ordinance invalidated in Dean Milk, the barrier of the reciprocityclause to sales of out-of-state milk in Mississippi has in this case also "inpractical effect exclude(d) from distribution in (Mississippi) wholesome milkproduced . . . in (Louisiana)." 340 U.S., at 354, 71 S.Ct., at 297.7 Only stateinterests of substantial importance can save § 11 in the face of that devastatingeffect upon the free flow of interstate milk.

11 Mississippi's contention that the reciprocity clause serves its vital interests inmaintaining the State's health standards borders on the frivolous. The clauseclearly does not do so in the sense of furthering Mississippi's established milkquality standards. For, according to appellee, "s 11 covenants that Mississippiwill do the inspections, will certify them, and will accept a standard below thatapplicable to domestic producers if the forwarding state will do the same."Brief for Appellee 9. Thus, even if Louisiana's standards were lower thanMississippi's, the clause permits Louisiana milk to be admitted to Mississippi ifLouisiana enters into a reciprocity agreement. The reciprocity clause thusdisserves rather than promotes any higher Mississippi milk quality stand ards.Therefore this is a case where the "burden imposed on (interstate) commerce is

III

clearly excessive in relation to the putative local benefits." Pike v. BruceChurch, Inc., supra, 397 U.S., at 142, 90 S.Ct., at 847.

12 Mississippi next argues that the reciprocity clause somehow enablesMississippi to assure itself that the reciprocating State's (here Louisiana's)health standards are the "substantial equivalent" of Mississippi's.8 But even ifthis were true, and the premise may be disputed,9 there are means adequate toserve this interest that are substantially less burdensome on commerce, and,therefore, Dean Milk teaches that the burden of the mandatory reciprocityclause cannot be justified in view of the character of the local interest and theseavailable methods of protecting it. In the absence of adequate assurance that thestandards of a sister State, either as constituted or as applied, are substantiallyequivalent to its own, Mississippi has the obvious alternative of applying itsown standards of inspection to shipments of milk from a nonreciprocatingState.10 Dean Milk, supra, 340 U.S., at 355, 71 S.Ct., at 298, expresslysupported the adequacy of this alternative: "(S)uch inspection is readily open toit without hardship for it could charge the actual and reasonable cost of suchinspection to the importing producers and processors."11 Cf. Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92S.Ct. 1349, 31 L.Ed.2d 620 (1972).

13 Mississippi argues that apart from the putative health-related interests served bythe clause, the reciprocity requirement is in effect a free-trade provision,advancing the identical national interest that is served by the CommerceClause.

14 The argument is two-pronged. First, Mississippi, argues that the reciprocityrequirement serves to help eliminate "hypertechnical" inspection standards thatvary between different States.12 Such hypertechnical standards are said toburden commerce by requiring costly duplicative or out-of-state inspection ininstances where, for truly health-related purposes, the standards of the differentStates are "substantially equivalent." The Court has recognized that mutuallybeneficial objectives may be promoted by voluntary reciprocity agreements,and that the existence of such an agreement between two or more States is not aper se violation of the Commerce Clause of which citizens of nonreciprocatingStates who do not receive the benefits conferred by the agreement maycomplain. See Kane v. New Jersey, 242 U.S. 160, 167-168, 37 S.Ct. 30, 31-32,61 L.Ed. 222 (1916); cf. Bode v. Barrett, 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed.567 (1953).13 But we have not held that acceptance of offered reciprocity isrequired from other States, see Kane v. New Jersey, supra, 242 U.S., at 168, 37

S.Ct., at 32, or that a State may threaten complete isolation as the alternative toacceptance of its offer of reciprocity. Mississippi may offer reciprocity to Stateswith substantially equivalent health standards, and insist on enforcement of itsown, somewhat different, standards as the alternative. But Mississippi may notuse the threat of economic isolation as a weapon to force sister States to enterinto even a desirable reciprocity agreement.

15 The second prong of appellee's argument that the reciprocity requirementpromotes trade between the States draws upon Mississippi's allegations thatLouisiana is itself violating the Commerce Clause by refusing to admit milkproduced in Mississippi. Mississippi asserts that Louisiana has refusedreciprocity with Mississippi in bad faith, and in fact has erected economicbarriers to the sale of Mississippi milk in Louisiana under the guise of healthand inspection regulations. Hence, the reciprocity agreement, it is argued, is alegitimate means by which Mississippi may seek to gain access to Louisianamarkets for its own producers as a condition to allowing Louisiana milk to besold in Mississippi. We cannot agree.

16 First, to the extent, if any, that Louisiana is unconstitutionally burdening theflow of milk in interstate commerce by erecting and enforcing economic tradebarriers to protect its own producers from competition under the guise of healthregulations, the Commerce Clause itself creates the necessary reciprocity:Mississippi and its producers may pursue their constitutional remedy by suit instate or federal court challenging Louisiana's actions as violative of theCommerce Clause.

17 Second, to the extent that Louisiana is legitimately exercising its local powersin the interest of the health of its citizens by refusing reciprocity andconsequently the admission of milk deemed in good faith by state officials to beof insufficient quality, Mississippi is not privileged under the CommerceClause to force its own judgments as to an adequate level of milk sanitation onLouisiana at the pain of an absolute ban on the interstate flow of commerce inmilk. However available such methods in an international system of tradebetween wholly sovereign nation states, they may not constitutionally beemployed by the States that constitute the common market created by theFramers of the Constitution. To allow Mississippi to insist that a sister Stateeither sign a reciprocal agreement acceptable to Mississippi or else beabsolutely foreclosed from exporting its products to Mississippi would plainly"invite a multiplication of preferential trade areas destructive of the verypurpose of the Commerce Clause." Dean Milk, supra, 340 U.S., at 356, 71S.Ct., at 299. No "parochial legislative polic(y)," H. P. Hood & Sons, Inc. v.Du Mond, 336 U.S., at 538, 69 S.Ct., at 665, could be more precisely

Section 11 provides in full text:

"Milk and milk products from points beyond the limits of routine inspection ofthe state of Mississippi or its police jurisdiction, may be sold in the state ofMississippi or its police jurisdiction, provided they are produced, pasteurized,and labeled under regulations which are substantially equivalent to thisRegulation and have been awarded an acceptable milk sanitation compliancerating of 90 percent or above made by a state milk sanitation rating officercertified by the U. S. Public Health Service, and Provided further, that theregulatory agency who (sic ) has jurisdiction accepts Grade A milk and milkproducts produced and processed in Mississippi on a reciprocal basis. Thehealth authority is authorized to require and conduct laboratory analysis andinvestigations to determine if the milk and milk products are in compliancewith this Regulation." Record 102.

calculated to open "the door . . . to rivalries and reprisals that were meant to beaverted by subjecting commerce between the states to the power of the nation."Baldwin v. G. A. F. Seelig, Inc., 294 U.S., at 522, 55 S.Ct., at 500.

18 "The Constitution was framed under the dominion of a political philosophy lessparochial in range. It was framed upon the theory that the peoples of the severalstates must sink or swim together, and that in the long run prosperity andsalvation are in union and not division." Id., at 523, 55 S.Ct., at 500.

19 The mandatory reciprocity provision of § 11, insofar as justified by the State asan economic measure, is "precisely the kind of hindrance to the introduction ofmilk from other States . . . condemned as an 'unreasonable clog upon themobility of commerce. . . . (It is) hostile in conception as well as burdensome inresult.' " Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S., at 377, 84S.Ct., at 387.

20 Accordingly, we hold that the mandatory character of the reciprocityrequirement of § 11 unduly burdens the free flow of interstate commerce andcannot be justified as a permissible exercise of any state power. The judgmentof the District Court is reversed, and the case is remanded for furtherproceedings consistent with this opinion.

21 It is so ordered.

22 Mr. Justice STEVENS took no part in the consideration or decision of this case.

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The Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, provides: "The Congressshall have power . . . To regulate Commerce with foreign Nations, and amongthe several States, and with the Indian Tribes."

Appellant also alleged a claim for relief under the Equal Protection Clause ofthe Fourteenth Amendment. In view of our conclusion we have no occasion toaddress that claim.

A&P attempted but failed to obtain the required reciprocity agreement from theLouisiana health authorities. It was informed by Louisiana health officials thatLouisiana had not entered into a reciprocity agreement with any State, that inthe opinion of Louisiana officials processed milk from Mississippi did not meetLouisiana health standards, and that Mississippi-processed milk from plants thatmet Louisiana standards would be admitted for sale in Louisiana. Record 15.

Appellee makes no contention that there are alternative means by whichappellant's milk may be judged qualified under Mississippi standards andthereby admitted for sale in the State. Indeed, appellee states that withoutreciprocity, milk from the Kentwood plant must be subjected to on-siteinspection according to Mississippi health standards, and that Mississippicurrently makes no provision for out-of-state inspection by Mississippiofficials. Brief for Appellee 15-16, n. 1.

Adjudication entails "emphasis upon the concrete elements of the situation thatconcerns both state and national interests. The particularities of a local statutetouch its special aims and the scope of their fulfillment, the difficulties which itseeks to adjust, the price at which it does so . . . . (P)ractical considerations,however screened by doctrine, underlie resolution of conflicts between state andnational power." F. Frankfurter, The Commerce Clause Under Marshall, Taneyand Waite 33-34 (1937).

"(I)t seems clear that those interferences (with interstate commerce) notdeemed forbidden are to be sustained . . . because a consideration of all thefacts and circumstances, such as the nature of the regulation, its function, thecharacter of the business involved and the actual effect on the flow ofcommerce, lead to the conclusion that the regulation concerns interestspeculiarly local and does not infringe the national interest in maintaining thefreedom of commerce across state lines." Di Santo v. Pennsylvania, 273 U.S.34, 44, 47 S.Ct. 267, 271, 71 L.Ed. 524 (1927) (Stone, J., dissenting).

The parties stipulated in the District Court that the net annual cost to A&Pincurred by its inability to use the product of its Kentwood facility and itsconsequent reliance on alternative sources of supply was $195,700.

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"If Louisiana will not give trust and reliance to Mississippi's conduct of theinspections, then Mississippi is loath to accept the same Louisiana procedures,out of a regard for the health and welfare of her own citizens." Brief forAppellee 11.

A sample reciprocity agreement acceptable to Mississippi is the following:

"AN ACCEPTABLE AGREEMENT TO MISSISSIPPI STATE BOARD OFHEALTH REGARDING RECIPROCITY IN THE MOVEMENT OF GRADEA MILK AND MILK PRODUCTS IN INTERSTATE SHIPMENT

"1. Each state shall be responsible for inspecting, sampling, and enforcing itsregulations that apply to the dairies and milk plants located in its respectivestate, provided each state's regulation is substantially equivalent.

"2. The appropriate state regulatory agency shall certify to the receiving stateagency that the dairies and plants involved in interstate shipment hold a validGrade A permit from said agency.

"3. Milk and milk products received into each state shall meet the chemical andbacteriological standards, labeling and delivery vehicle requirements of thereceiving state.

"4. Public health sanitation ratings shall be made by certified rating officials ofthe respective states of any milk supply involved in interstate shipment. Theratings shall be submitted to the FDA-PHS to be included and maintained onthe Interstate Milk Shippers List and published by the FDA-PHS so that theycan make spot check ratings of the supplies involved to determine ifsatisfactory sanitation surveillance is being carried out by the respective state.All sanitation ratings shall be 90% In compliance or above in order to beacceptable to the respective states.

"5. The regulatory agencies of each state shall sign reciprocity agreementscontaining the above stipulations."

On this record, we are not presented with and need not decide the question ofthe constitutionality under the Commerce Clause of a State's insistence onreinspection of milk originating in a foreign State where that insistence is notprompted by a health-related need to assure adequate standards but rather isprompted solely as a retaliatory measure because the foreign State refuses toaccept the receiving State's standards as adequate.

Mississippi's regulations call for inspection of "each dairy farm, milk hauler,milk plant, receiving station, and transfer station whose milk or milk products

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are intended for consumption within the State of Mississippi" as a condition tothe issuance of a permit, and for periodic inspection thereafter. Miss.Reg. § 5,Record 77. Although appellant's Kentwood plant is, of course, located outsideMississippi and would require out-of-state inspection by Mississippi officials,only six of 105 dairy farms from which A&P purchases raw milk are locatedoutside Mississippi. Plaintiff's Exhibit 1, and Exhibit A.

Appellant represents that it has already offered to pay the reasonable expensesof required out-of-state inspection, Brief for Appellant 7, although evidence ofthat offer does not appear in the record.

"(W)e say this regulation is wiser and more productive for interstate commercethrough all the States than having these picayune problems of how manysquare feet of floor space is in the milk parlor, or what the temperature of themilk is when it goes to the cooling truck." Tr. of Oral Arg. 20.

A&P agrees that reciprocity among States is a "laudable goal. Reciprocity, byeliminating hyper-technical standards peculiar to one state, may aid the freeflow of milk." Jurisdictional Statement 9.

We are not called upon to decide in this case whether or at what point thediversionary effects upon trade occasioned by a given reciprocity agreement(even though voluntary and nondiscriminatory) between some but not all Statesmight be such as to constitute an impermissible burdening of the nationalinterests embodied in the Commerce Clause, or the Compact Clause. Cf. Bodev. Barrett, 344 U.S., at 586, 73 S.Ct. 468, 470, 97 L.Ed. 567; Wharton v. Wise,153 U.S. 155, 171, 14 S.Ct. 783, 787, 38 L.Ed. 669 (1894).

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