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March 6, 1973


The opinion of the court was delivered by: McMILLEN, District Judge.


This case came on for trial on a declaratory action brought by an association and four of its members engaged in manufacturing detergents and phosphates. Plaintiffs seek to set aside an ordinance of the City of Chicago which since June 30, 1972 has made it a criminal offense to sell detergents containing phosphorus within the City. Phosphorus is the element from which phosphates are made and phosphates are a principal ingredient of most detergents. Hence detergent products sold in Chicago must now be made with substitutes for phosphates.

Plaintiffs Soap and Detergent Association, Monsanto Company and Amway Corporation have failed to prove the jurisdictional amount required by 28 U.S.C. § 1331, and their complaints will be dismissed. The remaining plaintiffs, The Procter and Gamble Company, a detergent manufacturer, and FMC Corporation, a phosphate manufacturer, have proved that well in excess of $10,000 is involved in their cases, and diversity is not contested.

The ordinance in question was adopted by the City Council on October 14, 1970 upon the recommendation of its Committee on Environmental Control which had held public hearings on the matter for three days. The Committee did not make a written report and the City Council made no findings or declarations of policy, so the specific bases for the ordinance became known only in the course of this litigation. The court ruled at the close of the plaintiffs' case that it had produced sufficient evidence to require the City to justify the ordinance.

We now find and conclude that the City failed to sustain this burden, under the particular facts and circumstances of this case, and that the two remaining plaintiffs are entitled to the declaratory and injunctive relief prayed for. The evidence is largely technical and too voluminous to summarize in detail, but the court finds the following controlling facts have been proved.

The ordinance provides in pertinent part as follows:

  § 17-7.3(b) It shall be unlawful for any person,
  firm, or corporation to sell, offer or expose for
  sale, give or furnish any synthetic detergent or
  detergent containing any phosphorus, expressed as
  elemental phosphorus, including synthetic
  detergents or detergents manufactured for machine

  dairy equipment, beverage equipment, food
  processing equipment and industrial cleaning
  equipment, within the City of Chicago from and
  after June 30, 1972.
  § 17-7.4 Penalties. Any person found guilty of
  violating, disobeying, omitting, neglecting, or
  refusing to comply with, or resisting or opposing
  the enforcement of any of the provisions of this
  Article VII, . . . upon conviction thereof shall be
  punished by a fine of not less than one hundred
  dollars ($100.) nor more than $300.00 for the first
  offense, and not less than $300.00 nor more than
  $500,00 for the second and each subsequent offense,
  in any 180-day period, or shall be punishable as a
  misdemeanor by incarceration in the county jail for
  a term not to exceed six months under procedures
  set forth in Section 1-2-1.1 of the Illinois
  Municipal Code (Ill.Rev.Stat. 1969, ch. 24, par.
  1-2-1.1) as amended, or by both fine and
  imprisonment. A separate and distinct offense shall
  be regarded as committed each day on which such
  person shall continue or permit any such violation,
  or failure to comply is permitted to exist after
  notification thereof.

Similar ordinances have been adopted by various jurisdictions, state and local, in widely separated areas of the United States. As of September 1972, four small municipalities neighboring Chicago, and also the unincorporated area of Lake County, Illinois prohibit the sale of detergents containing any phosphorus. Other neighboring jurisdictions, including the states of Indiana and Michigan, limit the phosphorus content to 8.7%. Several municipalities have repealed or delayed the effective date of their ordinances, and most of the other municipalities surrounding Chicago have no restrictions on the sale or use of phosphate detergents.

Nationwide, a patchwork pattern of ordinances and laws has grown up over the past three years ranging from complete prohibition of phosphate detergents in Dade County, Florida, Erie County (Buffalo), New York, and two additional states outside of the Mid-West, an 8.7% limitation in many other localities, and no controls elsewhere. These laws and ordinances have become too numerous and diverse to summarize beyond the date of the stipulation of the parties dated September 26, 1972. The task of complying with and contesting this rash of legislation has required considerable attention of the industry, one corporate official testifying that he spends a day a week on the problem. Members of the industry or its association have spent several millions of dollars to develop a substitute for phosphate in detergents, but none of these efforts have yet been successful. Consequently, in many areas plaintiffs have replaced all or most of the phosphorus content of detergents with soda ash, a less effective and cheaper component.

Plaintiffs contend that detergents containing phosphorus are a useful and harmless product and that the City's ordinance unreasonably and unjustifiably interferes with their normal distribution and sale of these products in interstate commerce. The original complaints also alleged unconstitutional discrimination and a violation of the plaintiffs' right to due process, among other things, but on October 30, 1972 they filed a Second Amended Complaint which was limited to an alleged violation of the Commerce Clause of the Constitution of the United States (Article I, Section 8, Clause 3). Plaintiffs seek a declaration that the ordinance is unconstitutional and to enjoin its enforcement.

The City contends that the ordinance is justified to protect the Illinois Waterway into which the Metropolitan Sanitary District discharges the City's sewage effluent and also to protect the City's water supply which comes from Lake Michigan. It contends that phosphates unduly accelerate the natural eutrophication of both of these bodies of water and would be unreasonably expensive to remove by sewage treatment. Since detergents contribute approximately 50% of the phosphates in Chicago's sewage effluent, it asserts that it has the power and the right to prohibit the introduction of this element into the system, despite any interference that this may have on interstate commerce. In short the City argues that the benefits resulting from the ordinance outweigh any disadvantage to the plaintiffs or their customers, including housewives and businesses using detergents. It is worth noting that none of these groups nor any of the communities which depend on the two bodies of water have sought to intervene in this case.

The City does not contend that it has the right to prohibit the sale of safe and useful products within its confines, and plaintiffs do not contend that they have the right to distribute and sell a product in interstate commerce which damages the public's water. The principal issues therefore are whether the ordinance does interfere with the free flow of interstate commerce and, if so, whether this is justified by the benefits realized by the ordinance. The parties have offered their evidence in a commendably thorough and forthright manner, so that the court has been greatly assisted in deciding this case on a much more complete record than was presented to the Committee on Environmental Control of the Chicago City Council.

There can be no doubt that local governments have the right to enact laws for the protection of the public, even to the extent of regulating or excluding certain undesirable activities from interstate commerce. For example, the State of Florida can forbid the interstate shipment of inedible or immature citrus fruit in order to protect its industry's reputation. Sligh v. Kirkwood, Sheriff of Orange County, Florida, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915). Trucks over a certain size and weight were held to be properly excluded by one state in order to protect its highways. South Carolina Highway Department v. Barnwell Brothers, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1939). A smoke ordinance of the City of Detroit was justified as a health measure even though it burdened interstate navigation. Huron Portland Cement Company v. ...

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