National Broiler Marketing Ass'n v. United States
Opinion of the Court
delivered the opinion of the Court.
Once again,
Is a producer of broiler chickens precluded from qualifying as a “farmer,” within the meaning of the Capper-*818 Volstead Act, when it employs an independent contractor to tend the chickens during the “grow-out” phase from chick to mature chicken?2
The issue apparently is of importance to the broiler industry and in the administration of the antitrust laws.
I
In April 1973, in the United States District Court for the Northern District of Georgia, the United States brought suit against petitioner National Broiler Marketing Association (NBMA). It alleged that NBMA had conspired with others not named, but including members of NBMA, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 (1976 ed.). It prayed for injunctive relief and that NBMA “be ordered to make whatever changes are necessary in its organization and operation to insure compliance with the judgment” of the court. Record 10. In its answer NBMA alleged, among other things, that its status, as a cooperative association of persons engaged in the production of agricultural products, sheltered it from antitrust liability for the acts alleged, under § 1 of the Capper-Volstead Act, also known as
On motion and cross-motion for partial summary judgment, the District Court concluded that the involvement of all the members of NBMA in the production of broiler chickens was sufficient to justify their classification as “farmers,” within the meaning of the Act, and that NBMA therefore was a cooperative entitled to the limited exemption from the antitrust laws the Act afforded. 1975-2 Trade Cases ¶ 60,509.
On appeal,
II
NBMA is a nonprofit cooperative association organized in 1970 under Georgia law.
These members are all involved in the production and marketing of broiler chickens.
The broiler industry has become highly efficient and departmentalized in recent years,
All the members of NBMA are “integrated,” that is, they are involved in more than one of these stages of production. Many, if not all, directly or indirectly own and operate a processing plant where the broilers are slaughtered and dressed for market. All contract with independent growers for the raising or grow-out of at least part, and usually a substantial part, of their flocks. Id., at 8. Often the chicks placed with an independent grower have been hatched in the member’s hatchery from eggs produced by the member’s breeder flocks.
It is established, however, ibid.; Brief for Petitioner 5 n. 2, that six NBMA members do not own or control any breeder flock whose offspring are raised as broilers, and do not own or control any hatchery where the broiler chicks are hatched. And it appears from the record that three members do not own a breeder flock or hatchery, and also do not maintain any grow-out facility.
Ill
The Capper-Yolstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.
The Act protects “[p'Jersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers” (emphasis added). A common-sense reading of this language
Farmers were perceived to be in a particularly harsh economic position. They were subject to the vagaries of market conditions that plague agriculture generally, and they had no means individually of responding to those conditions. Often the farmer had little choice about who his buyer would be and when he would sell. A large portion of an entire year’s labor devoted to the production of a crop could be lost if the farmer were forced to bring his harvest to market at an unfavorable time. New farmers, however, so long as they could act only individually, had sufficient economic power to wait out an unfavorable situation. Farmers were seen as being caught in the hands of processors and distributors who, because of their position in the market and their relative economic strength, were able to take from the farmer a good share of whatever
NBMA argues that this history demonstrates that the Act was meant to protect all those that must bear the costs and risks of a fluctuating market,
Petitioner suggests that agriculture has changed since 1922, when the Act was passed, and that an adverse decision here “might simply accelerate an existing trend toward the absorption of the contract grower by the integrator,” or “might induce the integrators to rewrite their contracts with the contract growers to designate the latter as lessor-employees rather than independent contractors.” Brief for Petitioner 13; see id., at 24, 26, and Tr. of Oral Arg. 17. We may accept the proposition that agriculture has changed in the intervening 55 years, but, as the second Mr. Justice Harlan said, when speaking for the Court in another context, a statute “is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes.” United States v. Sisson, 399 U. S. 267, 297 (1970). Considerations of this kind are for the Congress, not the courts.
IV
We, therefore, conclude that any member of NBMA that owns neither a breeder flock nor a hatchery, and that maintains no grow-out facility at which the flocks to which it holds title are raised, is not among those Congress intended to protect by the Capper-Volstead Act. The economic role of such a member in the production of broiler chickens is indistinguish
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings.
It is so ordered.
See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298 (1977).
The Court of Appeals described the issue in this manner:
“We must decide whether broiler industry companies that neither own nor operate farms can be 'farmers’ within the meaning of a 1922 federal statute called the Capper-Volstead Act, which gives farmers’ cooperatives some measure of protection from the antitrust laws” (footnote omitted). 550 F. 2d 1380, 1381 (CA5 1977).
Nineteen States have filed a brief amicus curiae and assert interests as antitrust litigants. See In re Chicken Antitrust Litigation, M. D. L. No. 237, ND Ga. No. C74r-2454A. See also Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978); Department of Agriculture, Farmer Cooperative Service, Legal Phases of Farmer Cooperatives (1976); Note, Trust Busting Down on the Farm: Narrowing the Scope of Antitrust Exemptions for Agricultural Cooperatives, 61 Va. L. Rev. 341 (1975).
Section 1 of the Capper-Yolstead Act provides in pertinent part:
“Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit .growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . . .
The statute further provides that any such association must be operated for the mutual benefit of its members; that it may not pay dividends of more than 8% annually on its stock or membership capital; and that it “shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.” Section 2 of the Act, 7 U. S. C. §292 (1976 ed.), provides for certain regulation of the association by the Secretary of Agriculture.
In order to facilitate the appeal, the United States, after the District Court’s decision, amended the complaint to limit its allegations of conspiracy to the members of NBMA. App. 94r-95. This was done without prejudice to any later renewal of allegations abandoned by the amendment. Id., at 91. Noting that the United States did not dispute that if NBMA were a qualified cooperative, the exemption afforded by the Capper-Volstead Act provided a complete defense to the amended complaint, and restating its conclusion that NBMA’s members were entitled to join in a cooperative under the Act, the District Court dismissed the amended complaint with prejudice. Id., at 105-108; 1976-1 Trade Cases ¶ 60,801.
Georgia Cooperative Marketing Act, Ga. Code § 65-201 et seq. (1975). The Act authorizes cooperative associations of “persons engaged in the production of . . . agricultural products.” § 65-205. When first organized, NBMA was chartered as a cooperative association with capital stock. In December 1973, after the complaint in this suit had been filed, its articles of incorporation were amended to authorize the cancellation of its capital stock and the conversion of the association to a nonprofit membership cooperative association not having stock. App. 6.
There is no suggestion by the parties that this change in organization in any way affects the issue presented in the case.
The record includes more specific but nevertheless limited references to NBMA’s activities. It has been involved in the purchasing of feed ingredients and of other specialized products used by its members in raising broilers and preparing them for market, in market research and planning, and in conducting a foreign trade sales program. Id., at 137-139. The full range of NBMA’s activities may well be put in issue on remand.
Broilers are chickens that a.re slaughtered at 7 to 9 (or 8 to 10) weeks of age and processed for sale to supermarkets, restaurants, hotels and other institutions. Id., at 8, 93, 98. The United States has conceded that, for the purposes of this litigation, a broiler chicken is an agricultural product. Id., at 7.
Compare, for example, Department of Agriculture, Agricultural Adjustment Administration, W. Termohlen, J. Kinghorne, & E. Warren, An Economic Survey of the Commercial Broiler Industry (1936), with V. Benson & T. Witzig, The Chicken Broiler Industry: Structure, Practices, and Costs (Dept, of Agriculture, Economic Rep. No. 381, 1977). See generally E. Roy, Contract Farming and Economic Integration, ch. 4, “Broiler Chickens” (2d ed. 1972); Department of Agriculture, Packers and Stockyards Administration, The Broiler Industry: An Economic Study of Structure, Practices and Problems (1967); Ohio Agricultural Research and Development Center, B. Marion & H. Arthur, Dynamic Factors in Vertical Commodity Systems: A Case Study of the Broiler System (1973).
See Table G-1, and the data as to Members 2, 3, and 20, attached to affidavit of I. R. Barnes, submitted by petitioner and accepted as to accuracy by the United States. Record 467; App. 187-188.
The Act does not remove from the general operation 'of the antitrust laws the deahngs of such cooperatives with others. United States v. Borden Co., 308 U. S. 188, 203-205 (1939).
See Malat v. Riddell, 383 U. S. 669, 571 (1966); Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 618 (1944).
The report on the bill that became the Act stressed that the limitations on “the kind of associations to which the legislation applies” were “aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.” H. R. Rep. No. 24, 67th Cong., 1st Sess., 1 (1921). See also H. R. Rep. No. 939, 66th Cong., 2nd Sess., 1 (1920).
Senator Kellogg, a supporter of the bill, read this language to have a restrictive meaning:
“Mr. CUMMINS .... Are the words 'as farmers, planters, ranch-men, dairymen, nut or fruit growers’ used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?
“Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers’ would have covered them all.
“Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
“Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers*824 farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.
“Mr. TOWNSEND. They must be persons who produce these things.
“Mr. KELLOGG. Yes; that has always been the understanding.” 62 Cong. Rec. 2052 (1922).
Section 6 of the Clayton Act reads:
“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”
See also, e. g., 59 Cong. Rec. 7851-7852 (1920) (remarks of Rep. Morgan.); id., at 8017 (remarks of Rep. Volstead). See generally Ballan-tine, Co-operative Marketing Associations, 8 Minn. L. Rev. 1 (1923) ; L. Hulbert, Legal Phases of Cooperative Associations 43-47 (Department of Agriculture Bull. No. 1106,1922).
The Court specifically has acknowledged the relationship of the exemption for labor unions and that for farm cooperatives:
“These large sections of the population — those who labored with their hands and those who worked the soil — were as a matter of economic fact in a different relation to the community from that occupied by industrial combinations. Farmers were widely scattered and inured to habits of individualism; their economic fate was in large measure dependent upon contingencies beyond their control.” Tigner v. Texas, 310 U. S. 141, 145 (1940).
See also Liberty Warehouse Co. v. Tobacco Growers, 276 U. S. 71, 92-93 (1928); Frost v. Corporation Comm’n, 278 U. S. 515, 538-543 (1929) (Brandéis, J., dissenting).
See, e. g., 59 Cong. Rec. 8025 (1920) (remarks of Rep. Hersman); id., at 9154 (extended remarks of Rep. Michener); 61 Cong. Rec. 1040 (1921) (remarks of Rep. Towner); 62 Cong. Rec. 2048-2049 (1922) (remarks of Sen. Kellogg); id., at 2058 (remarks of Sen. Capper).
Essentially the same argument was made and rejected by the Court in Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384, 393-396 (1967), in which it concluded that a cooperative of orange growers, which included some members who operated packing houses but grew no fruit, was not entitled to the protection of the Act.
NBMA asserts that the integrator bears 90%, or more, of broiler production costs, as compared with the grower’s 10%, or less. Tr. of Oral Arg. 13; Brief for Petitioner 16, 21.
This amendment, repeatedly introduced by Senator Phipps, would have
“and where any such agricultural product or products must be submitted to a manufacturing process, in order to convert it or them into a finished commodity, and the price paid by the manufacturer to the producer thereof is controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products, then any such manufacturers.” 62 Cong. Ree. 2227,2273-2275, 2281 (1922).
The dissent suggests, post, at 849, that petitioner’s members “partake in substantially all of the risks of bringing a crop . . . from ohick to broiler.” Although it is true that petitioner’s members bear some of the risks associated with bringing each flock to market, they do not bear all the risks. Growers dealing with many of petitioner’s members, including M2, M3, and probably M20, receive no payment for their labor if a flock is lost due, in some cases, to the weather, and in other cases, to disease. See Table G-2, App. 195. And, perhaps more importantly, petitioner’s members do not bear all the risks associated with changes in demand over a longer period of time. Very few of petitioner’s members, not including M2 or M3, provide the growers with whom they deal anything more than “informal assurances” that the member will continue to place flocks with the grower and therefore that the grower will receive a return on the investment he has in his grow-out facilities. See Table G-7, App. 219.
Because we conclude that these members have not made the kind of investment that would entitle them to the protection of the Act, we need not consider whether, even if they had, they would be ineligible for the protection of the Act because their economic position is such that they are not helplessly exposed to the risks about which Congress was concerned. Thus we need not consider here the status under the Act of the fully integrated producer that not only maintains its own breeder flock, hatchery, and grow-out facility, but also runs its own processing plant. Neither'do we consider the status of the less fully integrated producer that, although maintaining a grow-out facility, also contracts with independent growers for a large portion of the broilers processed at its facility.
There is nothing in the record that would allow us to consider whether these integrators are “too small” to own their own breeder flocks, hatcheries, or grow-out facilities, or whether, because of the history of their economic development, they have concentrated only on the feed production and processing aspects of broiler production.
Concurring Opinion
concurring.
I join the Court's opinion. I agree that since several of NBMA’s members were not engaged in the production of agriculture as farmers, Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967), compels the holding that NBMA’s activities challenged by the United States cannot be afforded the Sherman Act exemption NBMA asserts. Since that disposition settles this aspect of the suit between the parties, it is unnecessary for the Court to consider, and the Court reserves, the question of “the status under the Act of the fully integrated producer that not only maintains its breeder flock, hatchery, and grow-out facility, but also runs its own processing plant.” Ante, at 828 n. 21. I write separately only to suggest some considerations which bear on this broader question. I do so because the rationale of the dissent necessarily carries . over to that question.
I
The Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291 et seq. (1976 ed.), like the Sherman Act which it modifies, was populist legislation which reacted to the increasing concentrations of economic power which followed on the heels of the industrial revolution. The Sherman Act was the first legislation to deal with the problems of participation of small economic units in an economy increasingly dominated by economic titans. Next enacted was § 6 of the Clayton Act, 38 Stat. 730, lo U. S. C. § 17 (1976 ed.), which provides:
“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and oper*830 ation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws.”
This legislation linked industrial labor and farmers as the kind of economic units of individuals for whom it was thought necessary to permit cooperation — cartelization in economic parlance — in order to survive against the economically dominant manufacturing, supplier, and purchasing interests with which they had to interrelate. The failure of § 6 expressly to authorize cooperative marketing activities, and to permit capital stock organizations coverage under it, prompted enactment of the Capper-Volstead Act in 1922 to remedy these omissions. Section 1 of that Act provides, inter alia:
“Persons engaged in the production of agricultural products' as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. . . .”
At the time the Capper-Volstead Act was enacted, farming was not a vertically integrated industry. The economic model was a relatively large number of small, individual, economic farming units which actually tilled the soil and husbanded animals, on the one hand, and, on the other hand, the relatively small number of large economic units which processed the agricultural products and resold them for wholesale and retail distribution. It was the disparity of power between the units at the respective levels of production that spurred
“Senator Capper stated a point of view to be found on almost every page of the congressional debate on his bill, ‘Middlemen who buy farm products act collectively as stockholders in corporations owning the business and through their representatives buy of farmers, and if farmers must continue to sell individually to these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market, then farmers must for all time remain at the mercy of the buyers.’ 62 Cong. Rec. 2058 (1922).” Post, at 841 (footnote omitted).
The legislative history makes clear that the regime which Congress created in the Capper-Volstead Act to ameliorate this situation was one of voluntary cooperation. The Act would allow farmers to “ ‘combine with [their] neighbors and cooperate and act as a corporation, following [their] product from the farm as near to the consumer as [they] can, doing away in the meantime with unnecessary machinery and unnecessary middle men.’ That is all this bill attempts to do.” 62 Cong. Rec. 2257 (1922) (remarks of Sen. Norris). As the Court notes, however, “[c]learly, Congress did not intend to extend the benefits of the Act to processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk.” Ante, at 826-827. This fact is demonstrated from several exchanges during the debate clarifying the intent behind the bill and also by the abortive Phipps amendment. In the colloquy between Senators Kellogg and Cum-mins, quoted in extenso, ante, at 823-824, n. 13, an intent not
“Mr. CUMMINS . . . Take the flouring mills of Minneapolis: They are engaged in a broad sense, in the production of an agricultural product. The packers are engaged in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
“Mr. KELLOGG: Certainly not_” 62 Cong. Rec. 2052 (1922).
Debate surrounding the proposed Phipps amendment, quoted ante, at 827 n. 19, the effect of which would have been to exempt, for example, sugar refiners with preplanting contracts, yields a similar understanding. Senator Norris, in leading the successful rejection of the amendment, explained: “The amendment ... is simply offered for the purpose of giving to certain manufacturers the right to be immune from any prosecution under the Sherman Antitrust Act. . . . They are not cooperators; they are hot producers; it is not an organization composed of producers who incorporate together to handle their own products; that is not it.” 62 Cong. Rec. 2275 (1922) (emphasis added). These statements show that Congress regarded both “manufacturers of finished agricultural products” and “processors” as ineligible. Whether or not there is a distinction in economic or other terms between “manufacturers” who refine sugar from beets, or “processors” who mill wheat into flour, both groups were thought of as beyond the reach of § 1 — “They are not cooperators.” Thus the legislative history demonstrates that the purpose of the legislation was to permit only individual economic units working at the farm level
II
A
The dissent is correct, of course, that “[t]he nature of agriculture has changed profoundly since the early 1920’s when the Capper-Volstead Act was debated and adopted. The reality of integrated agribusiness admittedly antiquates some of the congressional characterizations of farming.” Post, at 843. Most NBMA members are fully integrated, except for the grow-out stage which they contract out. Rather than groups of single-function farmers forming a collective jointly to handle, process, and market their agricultural products, these multifunction integrated units stand astride several levels of agricultural production which Congress in 1922 envisioned would be collectivized. Performing these functions for them
The dissent’s construction, it seems to me, would permit the behemoths of agribusiness to form an exempt association
B
Definition of the term “farmer” cannot be rendered without reference to Congress’ purpose in enacting the Capper-Yolstead Act. “When technological change has rendered its literal terms ambiguous, the . . . Act must be construed in light of [its] basic purpose.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). I seriously question the validity of any definition of “farmer” in § 1 which does not limit that term to exempt only persons engaged in agricultural production who are in a position to use cooperative associations for collective handling and processing — the very activities for which the exemption was created. At some point along the path of downstream integration, the function of the
Ill
If, because of changes in agriculture not envisioned by it in 1922, Congress’ purpose no longer can be achieved, there would be no warrant for judicially extending the exemption, even if otherwise it would fall into desuetude. In construing a specific, narrow exemption to a statute articulating a comprehensive national policy, we must, of course, give full effect to the specific purpose for which the exemption was established. But when that purpose has been frustrated by changed circumstances, the courts should not undertake to rebalance the conflicting interests in order to give it continuing effect. Cf. Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394, 414 (1974); Fortnightly Corp. v. United Artists, 392 U. S. 390, 401-402 (1968). Specific exemptions are the product of rough political accommodations responsive to the time and current conditions. If the passage of time
The dissent’s reconstruction of the exemption is doubly flawed, for it would frustrate the Act’s purpose to protect that segment of agricultural enterprise as to which Congress’ purpose retains vitality. The American Farm Bureau Federation, which has filed a brief amicus curias in this case, “is a voluntary general farm organization, representing more than 2.5 million member families in every State (except Alaska) and Puerto Rico.” Brief as Amicus Curiae 2. Speaking for the contract growers — those who actually own the land and husband the chicks from the time they are hatched until just before their slaughter- — the Federation argues that extending the exemption to integrators would stand the Act on its head; the integrators who process the fully grown broilers could thereby combine to dictate the terms upon which they will deal with the contract growers to the latter’s disadvantage.
Moreover, there is persuasive evidence that Congress’ concern for protecting contract growers vis-a-vis processors and handlers has not abated. In 1968, Congress enacted the Agricultural Fair Practices Act of 1967, 82 Stat. 93, 7 U. S. C. § 2301 et seq. (1976 ed,), designed to protect the “bargaining position” of “individual farmers” by prohibiting “handlers” from interfering with the “producers’ ” right “to join together voluntarily in cooperative organizations as authorized by law.” § 2301. In doing so, Congress legislated specifically to protect contract growers from integrated broiler producers. Section 4 (b) of the Act prohibits a “handler” from discriminating against “producers” with respect to any term “of purchase, acquisition or other handling of agricultural products because of his membership in or contract with an association of producers.” 7 U. S. C. §2303 (b) (1976 ed.) (emphasis added). The definition of the term “producer” is identical to that in
“As introduced, [§4(b)] prohibited discrimination in the terms of 'purchase or acquisition’ of agricultural products. The committee found that this provision would be ineffective with respect to much that it was manifestly intended to prohibit. Thus a broiler contractor might furnish hatching eggs or chicks to a producer under a bailment contract where title remained in the contractor; or a canning company might furnish seeds or tomato plants to a producer under a similar arrangement. No ‘purchase or acquisition’ would be involved. The committee amendment would extend this provision to 'other handling’ of agricultural products, thereby covering the examples just given and greatly broadening the scope of this provision.” S. Rep. No. 474, 90th Cong., 1st Sess., 5-6 (1967). (Emphasis added.)
See, e. g., 59 Cong. Rec. 7855-7856 (1920) (remarks of Rep. Evans: “[T]he liberty sought in this bill for the man who tills the soil”); id., at
Secretary Freeman, in recommending passage of the Agricultural Fair Practices Act, on behalf of the United States Department of Agriculture, said:
“Cooperative action in agricultural production and marketing is increasing. It is growing in response to the need, (1) to achieve more orderliness and efficiency in production and marketing, and (2) to protect and improve bargaining relationships between producers and marketing firms in the face of major changes taking place in the marketing system.
“These changes include the growing integration of production and marketing of agricultural products, the increased control of these functions by large, diversified corporations, and the expanded use of contracting by such corporations to meet their needs. Developments such as these weaken the marketing and bargaining position of individué, producers.” Hearings on S. 109 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 90th Cong., 1st Sess., 3-4 (1967). (Emphasis added.)
The dissenting opinion finds helpful in refuting the construction of the exemption suggested in this opinion two brief excerpts from the legislative history, quoted post, at 848 n. 14. These statements merely indicate that a processor like “Mr. Armour” who operates a farm would be entitled, free from antitrust liability, to cooperate with other producers in the common handling, processing, and marketing of the products they grow. Nothing in these statements suggests that the fact of farm ownership, however, would confer upon “Mr. Armour” the privilege to conspire with “Mr. Swift” to fix prices in their processing businesses. The dissent’s assertion, moreover, that the third proviso of 7 U. S. C. § 291 (1976 ed.) allows a food processor by becoming a producer as well to acquire antitrust exemption for whatever he produces and up to 50% of the product of others is surely erroneous. Both the plain language of the proviso and the statement of Senator Walsh quoted indicate that the privilege to process up to 50% of nonmember producers’ products while retaining the exemption belongs to the exempt association, not its members. Indeed, the full colloquy between Senators Kellogg and Walsh indicates that the intent was to exclude processors from the exemption with respect to their processing. “The object being that a few farmers should not organize a corporation simply as a selling agency and not personally really be cooperative members.” 62 Cong. Rec. 2268 (1922) (remarks of Sen. Kellogg).
The statement of Senator Kellogg quoted, moreover, refers to aji amendment which was not passed and which is simply irrelevant.
See Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978).
Dissenting Opinion
dissenting.
The majority opinion fails to provide a functional definition of what it means to be a farmer within the sense of the Capper-Yolstead Act. We are alternatively told that antitrust protection was not intended for “the full spectrum of the agricultural sector, but, instead . . . only those whose economic position rendered them comparatively helpless,” ante, at 826, and then that certain members of the National Broiler Marketing Association are not entitled, to protection because they are not big enough to own their own breeder flock, hatchery, or grow-out facility, ante, at 827. The rule of the case evidently is that ownership of one of those facilities is somehow requisite in order to be a farmer. But no attempt is made to link that conclusion to the motivating factors behind an antitrust exemption for agriculture.
Historically, perishability of produce forced the farmer to take whatever price he could obtain at the time of the harvest. This one factor, more than any other, underlay the legislative recognition that allowing farmers to combine in marketing cooperatives was necessary for the economic survival of agriculture. “It is folly to suggest to the farmer with a carload of cattle on the market to Take them home’ or to ‘haul back his load of wheat' or other commodity.” 59 Cong. Rec. 7856 (1920) (Cong. Evans).
Economics teaches that the result in such circumstances is “bilateral monopoly” with a potentially beneficial impact on the eventual consumer and a sharing of cartel profits between the organized suppliers and the organized buyers.
The legislative history thus comports with the economic reality of farming, and provides a consistent rationale for an agricultural antitrust exemption. Farmers were price takers because their goods could not be stored, and because they dealt with a small number of well-organized middlemen.
The nature of agriculture has changed profoundly since the early 1920’s when the Capper-Volstead Act was debated and adopted. The reality of integrated agribusiness admittedly antiquates some of the congressional characterizations of farming. But this Court has interpreted other statutory exemptions in the light of a changing economy,
The important reasons for granting antitrust immunity to farmers have not changed. Their produce is still, in large part, incapable of being withheld for a higher price. And in this case, that factor is particularly relevant. The overwhelming demand is for fresh, not frozen, 8-to-10-week-old broiler chickens, and integrators must sell their produce within four days of slaughter.
All of this makes the present ease a very poor one in which to depart from the wording of the antitrust exemption for farmers. Broiler chickens are agricultural products.
The majority's insistence that Capper-Yolstead protection not be extended unless the broiler producers own a breeder flock, hatchery, or grow-out facility is sought to be explained by the rationale that “[t]he economic role” of a producer who does not own one of these facilities “is indistinguishable from that of [a] processor that enters into a preplanting contract with its supplier . . . .” Ante, at 827-828. Such processors were sought to be included within the Act by Senator Phipps' amendment, which was rejected.
It is inaccurate to equate broiler producers with processors of agricultural commodities, even those with preplanting contracts. Such an equation ignores the important distinction that members of the NBMA are all 'producers of broilers, whereas a mere processor of an agricultural commodity is not a producer. The Act extends protection to “[pjersons engaged in the production of agricultural products as farmers.”
A leading critic explained his opposition: “The amendment ... is simply offered for the purpose of giving to a certain class of manufacturers the right to be immune from any prosecution under the Sherman Antitrust Act.... They are not cooperators; they are not producers; it is not an organization composed of producers who incorporate together to handle their own products; that is not it.” 62 Cong. Rec. 2275 (1922) (Sen. Norris). The problem with the proposal, therefore, was not that processing was involved. The statute’s own words are conclusive that the activity of processing by producers was to be exempted from antitrust scrutiny.
This hostility to Senator Phipps’ amendment was understandable, given the frequent legislative references to the pernicious effect of middlemen. But NBMA members are not middlemen. Whether or not they own hatcheries or grow-out facilities, they are producers of agricultural commodities.
There is a functional dimension to this dichotomization of producers and processors. It involves the realities of risk-bearing. The Phipps amendment extended protection to manufacturers who paid a price for raw agricultural products that was “controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products.” Id., at 2273. Hence, the risk held in common by the Phipps-type processors and actual producers is only the fluctuation of final market price. All other risks are borne exclusively by the producer, including fluctuating prices for feed and medicine (all of which the producers supply to the grow-out facilities), damage in transit, and risk of death at any point in the growing process. All of these risks are identically suffered by NBMA members, whether or not they own their own breeder flocks, hatcheries, or grow-out facilities, because of the cost-plus nature of the grow-out contracts. The majority unwarrantedly relies upon the fact that the Senate rejected antitrust immunity for Phipps-type processors, who shared only one of these risks, to conclude that parties sharing all these elements of risk should also be denied protection.
There is cause to applaud the majority opinion in some respects: most importantly in its studious avoidance of any embracing of the United States’ point of view. The United States urges that, in determining what subclass of agricultural producers should be considered farmers, attention must focus on ownership of land and husbanding of flocks.
“The integrators are not 'actual farmers’ and do not claim to be so. They do not till the land or husband the flocks. They do not own the land on which the- flocks are raised.” Brief for United States 14.
*847 “Petitioner therefore draws no sustenance from the fact that both sharecroppers and the owners of sharecropped land may be 'farmers’: the sharecroppers work the farmland and the owners own it. Integrators do neither.” Id., at 14 n. 28.
Tying antitrust exemption to ownership of land has no legal or economic validity.
Under the United States’ theory, an integrator of the type found unprotected in today’s opinion could achieve antitrust exemption by purchasing the land on which the grow-out facility was maintained (perhaps leasing it back to the independent “grower”). Or he could achieve protection by hiring his grower as an employee, thereby achieving surrogate status for himself as a husbander of flocks. The anomalous aspect of either of these steps is that antitrust protection would thereby be attained by an expansion of the size of an operation — that is entirely the wrong direction, based on the majority’s reading of congressional sentiment (with which I largely concur) that small, nonintegrated farmers were those most to be protected by the Act.
The cumulative weight of the legislative history is that antitrust protection was needed for the cooperative efforts of ■those unable to combine in corporate form, whose product was thrown on the market in inelastic supply, where it faced an elastic demand. Perishability of agricultural product figured far more realistically than ownership of land as a reason for the inelastic supply of farmers’ produce at market time. And it was that inelastic supply that made farmers so very vulnerable to oligopsonistic demand. Put plainly, farmers had to sell but middlemen did not have to buy.
Antitrust exemption should be extended to agricultural producers who partake in substantially all of the risks of bringing a crop from seed to market, or, in this case, from chick to broiler. This is what it means to be a farmer. This rule would not exempt mere processors of agricultural produce, as the Phipps amendment had sought to do. It does not tie antitrust exemption to the irrelevant criterion of ownership of land, or tilling of the soil. But it does prove faithful, in a way the majority formulation does not, to the economic realities underlying Congress’ concern for agriculture: the perish-ability of product and organization of purchaser that make the individual farmer a price taker.
I respectfully dissent.
Congressman. Evans was commenting on an earlier version of the bill. “[T]he cooperative association is most helpful and its widest field of operation is in those products which are not sold upon exchanges . . . take the .fruit crop, the apple crop, the potato crop. It must be harvested at a certain time. . . . You can not dump all the production on the country at once and have the farmer receive a good price.” 62 Cong. Rec. 2052 (1922) (Sen. Kellogg). See also Id., at 2263 (Sen. Hitchcock).
See, e. g., Senator Capper’s speech, id., at 2058, summing up his support for “growers . . . [who were] compelled to dump [their products] on a glutted market at prices below cost of production.”
“Agriculture sells its product to the highest bidder in a restricted market. It sells in this sort of market at the price fixed by purchasers. . . . There must be given to agriculture some compensatory advantage to offset the present economic advantage which industry holds by reason of the fact that it can write into the selling price which it fixes all cost of production plus a profit.” 59 Cong. Rec. 8022 (1920) (remarks of Cong. Sumners on an earlier version of the bill). “Operating individually, [the farmer] is helpless and falls an easy victim to the organized operators who deal in his output.” Id., at 8025 (remarks of Cong. Hersman on earlier bill). “The farmers are not asking a chance to oppress the public, but insist that they should be given a fair opportunity to meet business conditions as they exist — a condition that is very unfair under the present law. Whenever a farmer seeks to sell his products he meets in the market place the representatives of vast aggregations of organized capital that largely determine the price of his products. Personally he has very little, if anything, to say about the price.” Id., at 8033 (remarks of Cong. Fields on earlier bill). The Congressman stressed that the bill would give
See G. Stigler, The Theory of Price 207-208 (3d ed. 1966); M. Friedman, Price Theory 191-192 (1976); G. Becker, Economic Theory 94-95 (1971).
H. R. Rep. No. 24, supra, n. 3, at 3.
See, e. g., Connell Constr. Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975) (labor exemption); Meat Cutters v. Jewel Tea Co., 381 U. S. 676 (1965) (labor exemption); and SEC v. National Securities, Inc., 393 U. S. 453 (1969) (concerning the McCarran-Ferguson Act exemption for insurance).
Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29, 44 (1978).
See ante, at 820 n. 8.
For most of the NBMA members, of course, ownership starts even earlier with the eggs produced by their own breeder flock.
The Act explicitly protects farmers who associate for the purpose of "collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged.” And the produce of a cooperative’s own members need comprise no more than 50% of the total handled by the cooperative; so it was clear that some members could be doing more processing than producing of agricultural commodities. They would still be entitled to protection because what produce they did raise was contributed to the cooperative.
This fact distinguishes Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967). Capper-Volstead Act protection was denied to orange growers cooperatives in that case because they included several “non-producer interests” in the form of orange processors who did not themselves grow any citrus at all. All of the members of NBMA, by contrast, produce broiler chickens. Some contract out various stages of the growing process, but all members own the agricultural product throughout its production, from chick to broiler.
The concurring opinion insists that the interpretation presented here “would permit the behemoths of agribusiness to form an exempt association ... so long as these concerns are engaged in the production of agriculture.” Ante, at 834-835. If this is a fatal flaw, it is shared equally by the majority opinion, which conditions exempt status on ownership of a breeder flock, hatchery, or grow-out facility. Ante, at 827. For all the majority opinion holds, antitrust exemption would apply to the NBMA if only it purged its membership of those integrators too small to own their own flock, hatchery, or grow-out facility.
In concluding that the possible extension of any antitrust exemption to large concerns was contrary to congressional intent, the concurring opinion has overlooked several explicit references in the legislative history. These passages demonstrate the point impliedly recognized by the majority opinion and this dissent: that one necessary evil of the bill, accepted by its sponsors, was that just as producers could combine and become processors as well as producers, and yet retain their exemption, large food processors
“The Senator from Ohio [Mr. POMERENE] at the last session of the Senate inquired very pertinently whether that provision would not, for instance, permit Mr. Swift or Mr. Armour, or Mr. Wilson, each of whom, I undertake to say, owns a farm and raises hogs, for instance, to organize under this proposed act and deal in the products of their own farms, and also to buy extensively from other producers. I think that that could be accomplished under the House bill. Recognizing that there is an evil there, and that the act might easily be abused, the Senate bill provides that such organizations cannot deal in products other than those produced by their members to an amount greater than the amount of the products which they get from their members. So that if the three gentlemen to whom I refer should organize an association under this proposed law, they could throw the product of their own farms into the association and could put just so much more into the business, but no more.” 62 Cong. Rec. 2157 (1922) (Sen. Walsh).
“[W]e have not given the farmers the power to organize a complete monopoly. This amendment applies to every association, whether it is a monopoly or an attempt to create a monopoly' or not, for it provides that any association must admit anyone who is qualified. If Mr. Armour should be a farmer he would have to be admitted; if a sugar manufacturer should happen to raise a little sugar he would have to be admitted.” Id,., at 2268 (Sen. Kellogg).
Reference
- Full Case Name
- National Broiler Marketing Assn. v. United States
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- 81 cases
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- Published