Fresh & Local
Schechter Poultry and Interstate Commerce
Column #15, Published Dec 30th, 2011
Our farm grows strawberries, blueberries, red and black raspberries, and blackberries. During the year, we use some of our berries to make jams and jellies. It is not a big business, but it is important to us, particularly in the fall and winter.
The Virginia Department of Agriculture and Consumer Services (VDACS) is very reasonable in the way they regulate tiny producers like us. They allow us to make our preserves in our own kitchen, and they routinely send someone around to inspect our kitchen.
I told this story in a previous column. Last spring, the FDA office in Baltimore contacted us and told us that from now on, we would be inspected by them, and we would have to comply with federal regulations. That would require us to use a commercial kitchen.
We told the FDA that we are a Virginia company, doing business entirely within Virginia, and the FDA has no jurisdiction over us. The FDA replied that because the sugar we use comes from outside Virginia, we were involved in interstate commerce, and they had the right to assert jurisdiction over anyone making preserves.
A reader of this column, Ben Works from Brandy Station, pointed out to me that this issue is already settled by case law and that the FDA is wrong. The precedent is a case from 1935 named A.L.A. Schechter Poultry Corp. v. United States.
This case is covered in detail in a book about the Great Depression titled, “The Forgotten Man” written by Amity Shlaes.
There were four brothers named Schechter who were Jewish immigrants from Poland. They operated a kosher poultry slaughterhouse in Brooklyn. They bought live chickens from markets in New York City, butchered the chickens, and resold them.
In 1933, Congress passed the National Industrial Recovery Act (NIRA) which created the National Recovery Administration (NRA). The NRA was given sweeping new powers to fix prices and wages, and regulate all business activity. Detailed regulations, called “codes,” where written for every industry. Within 12 months, over 800 codes and supplements had been approved, and 10,000 pages of law created.
The NRA code that applied to the Schechters was the “Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and About the City of New York.” It was a very long and dense document. President Roosevelt personally enacted this code by executive order just months before NRA inspectors dropped in on the Schechters.
A particularly nasty NRA inspector named Philip Alampi told the Schechters, “I am the Code Authority, and I got the right to do anything I want.” That sounds familiar.
The Schechters were charged with 60 violations of the NRA code including allowing customers to pick out their own chickens. They were convicted in District Court, fined almost $7,500 (many years of salary) and given jail sentences of from one to three months each.
They appealed their convictions, and lost on appeal.
The Schechter’s attorney, Joseph Heller, appealed to the Supreme Court and the Court took the case. Heller argued that the “stream of interstate commerce” stopped at the live chicken markets. Once the chickens arrived in New York, they were no longer a part of interstate commerce to the Schechters. The Supreme Court agreed in a unanimous 9-0 decision. They threw out the Schechters convictions, and ruled the NIRA legislation unconstitutional.
In our case, it makes no difference where the sugar came from. As long as we bought the sugar in Virginia, then we are an intrastate business.
I’ll bet the FDA knows about the Schechter case. I only wish I had known earlier. Thanks, Ben!
Bryant Osborn and his wife Terry own Corvallis Farms in Culpeper County. His column on fresh and locally grown food runs every Friday. He can be reached at bryant@corvallisfarms.com