October 31, 1980
Subject:
Health; Authority of local health boards to regulate "Grade A" fluid milk and milk products.
Requested By:
Stacy Covil, Head Sanitation Branch Division of Health Services
Question:
May a local board of health regulate the production, processing and distribution of "Grade A" fluid milk and milk products?
Conclusion:
No.
For the reasons stated herein, it is the opinion of this Office that (1) a local board of health has broad rule-making authority under G.S. 130-17(b) which would include the production, processing and distribution of "Grade A" fluid milk and milk products, (2) the enactment of such local health rules in this area, however, is pre-empted by State law (3) the Department of Agriculture may delegate inspection duties under Article 29, Chapter 106 to the Division of Health Services, Department of Human Resources, and (4) the Department of Agriculture may specify the conditions of the delegation.
G.S. 130-17(b) states in part that "(the) local boards of health shall make such rules and regulations, not inconsistent with law, as are necessary to protect and advance the public health." This broad rule-making authority is designed to empower the local boards of health to address and regulate matters which impact the public health in their respective jurisdictions. The phrases "necessary to protect and advance the public health" and "not inconsistent with law" provide standards to guide the exercise of the rule-making authority. It is beyond dispute that improper production, processing and distribution would seriously affect the public health. It is for this reason that the General Assembly has enacted numerous laws in this area. See Article 26, Chapter 106, Inspection of Ice Cream Plants, Creameries, and Cheese Factories; Article 27, Chapter 106, Records of Purchases of Milk Products; Article 28, Chapter 106, Records and Reports of Milk Distributors and Processors; Article 28A, Chapter 106, Regulation of Milk Brought into North Carolina from Other States; Article 28B, Chapter 106, Regulation of Production, Distribution, etc. of Milk and Cream; and Article 29, Chapter 106, Inspection, Grading and Testing Milk and Dairy Products. These laws entrust the Board and Department of Agriculture with specific and extensive rule-making and enforcement powers in the area of "Grade A" milk and milk products.
In Greene v. Winston-Salem, 287 N.C. 66, 213 S.E. 2d 231 (1975), our Supreme Court reiterated a century old principle, "the true principle is the municipal by-laws and ordinances must be in harmony with the general laws of the state, and whenever they come in conflict with the general laws, the by-laws and ordinances must give way," and cited State v. Williams, 283 N.C. 550, 196
S.E. 2d 756 (1973), as an example of such principle. In holding that a local ordinance which made it unlawful for a person to possess beer on the public streets of Mount Airy was invalidated by G.S. Chapter 18A, the Court stated:
"The General Assembly clearly intended to pre-empt the regulation of malt beverages in order to prevent local governments from enacting ordinances such as the one in question. . . .
The ordinance in question is not consistent with the general law in that . . . the ordinance purports to regulate a field in which a state statute has provided a complete and integrated regulatory scheme to the exclusion of local regulations. . . ." 287 N.C. at 74.
The question of the reconciliation of local ordinances and state statutes is a difficult one. In some instances, the General Assembly has prescribed the relationship between the two. For example, in G.S. 153A-131 pertaining to possession or harboring of dangerous animals, it is stated that "(no) such ordinance shall have the effect of permitting any activity or condition with respect to a wild animal which is prohibited or more severely restricted by regulations of the Wildlife Resources Commission"; in G.S. 153A-134 pertaining to regulating and licensing business, it is stated that "(this) section does not authorize a county to examine or license a person holding a license issued by an occupational licensing board . . ."; in G.S. 153A-135 pertaining to regulation of places of amusement, it is stated that "any regulation of such places shall be consistent with any permit or license issued by the State Board of Alcoholic Control"; and, finally, in G.S. 153A-136(b) pertaining to regulation of solid waste, it is stated that "(any) ordinance adopted pursuant to this section shall be consistent with and supplementary to any regulations adopted by the Department of Human Resources." In other instances, the General Assembly has set forth a general principle, such as G.S. 160A-174(b)(5): "An ordinance is not consistent with State or federal law when . . . (the) ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation." G.S. 130-17(b), which specifies the relationship between local health rules and Commission for Health Services’ rules, should also be noted.
In Staley v. Winston-Salem, 258 N.C. 244, 128 S.E. 2d 604 (1962), the North Carolina Supreme Court also considered a Winston-Salem ordinance which purported to regulate the sale of beer or wine. The Court reviewed the history of extensive State legislation in the field and concluded that "(to) interpret it (the State law) so as to permit local communities to override and set at nought the conclusions reached by the State Board (concerning licensing) might well reproduce the condition deplored by the 1945 Legislature. Local ordinances cannot override statutes applicable to the entire State. (Citation omitted.) Petitioners’ right to operate the restaurant being conceded, the zoning ordinance could not set at nought a statewide statute permitting the sale of wines in such restaurants. Such sales are a permitted part of authorized business." Id. 248, 249.
It is our opinion that the General Assembly has placed the entire field of regulation of "Grade A" fluid milk and milk products in the Board and Department of Agriculture just as it entrusted the regulation of the sale of beer or wine to the Alcoholic Beverage Control Board. Although local boards of health have broad rule-making authority, such authority is pre-empted by State law in the area of "Grade A" fluid milk and milk products. The statutes cited above do exhibit, in our opinion, an intent to preempt the regulation of "Grade A" fluid milk and milk products. The statutes create a complete and integrated regulatory scheme from production to processing to distribution just as the North Carolina Building Code was found to establish such a scheme in Greene v. Winston-Salem, supra. The State Building Code was found to preclude Winston-Salem from requiring sprinkler systems in high-rise buildings.
Although State law places full regulatory authority with the Department of Agriculture, G.S. 106-268 allows the Department to carry out its inspection duties through agents. In addition, the North Carolina Food, Drug and Cosmetic Act, Article 12, Chapter 106, which governs the production, handling and processing of foods (including milk), specifically allows the Department to conduct inspections through "any health, food or drug officer or employee of the State, or any political subdivision thereof; provided, that when examinations and investigations are to be conducted through any officer or employee of any agency other than the Department of Agriculture the arrangements for such examinations and investigations must be approved by the directing head of such agency." G.S. 106-141(b). The Department of Agriculture is authorized to enter into agreements with other State or local agencies, including local departments of health, whereby the Department of Agriculture’s inspection duties are delegated to those agencies under standards established by the Department.
Rufus L. Edmisten Attorney General
Robert R. Reilly Assistant Attorney General