regulation "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." They also appeared to agree that there was no "actual conflict" between the federal and state law in the sense that dual compliance would be possible." Unfortunately, the majority and dissenting opinions diverged on almost every other point in their analysis. In considering whether the federal activities had occupied the field, Justice Brennan, writing for the Court, noted that the maturity of avocados seemed an "inherently unlikely candidate for exclusive federal regulation"" and found that the nature of the subject matter did not seem to mandate national uniformity or federal supervision." Rather, it was a subject traditionally within the realm of state supervision under its police powers, and previous decisions of the Court had established that a state was free to impose higher standards for the benefit of its consumers, absent an express congressional command to the contrary.22 Justice White, writing the dissenting opinion, drew some directly opposite conclusions in finding that the complete and pervasive nature of the federal regulatory scheme necessarily excluded any state regulation having the same purpose. 23 Moreover, he criticized the majority's reliance on a "higher standard" test, noting that the experts were unable to agree on whether the federal or state avocado marketing standards were higher, and that the Secretary of Agriculture had specifically made a legislative finding that the federal standard was preferable.24 In the final step of analysis, both the majority and dissenting opinions in Florida Avocado attempted to discern congressional intent from the terms of the federal legislation and from its history. Justice Brennan initially noted a presumption in favor of the coexistence of federal and state law. 25 Moreover, the federal law appeared to declare that its agricultural production controls were 18. 373 U.S. at 141, 165 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 19. 373 U.S. at 142-43. 20. Id. at 143. 21. Id. Likewise, the Court, in a unanimous decision against preemption in another case later in the same term, held that regulation of radio advertising was not a subject inherently requiring national uniformity. Head v. New Mexico Bd. of Examiners of Optometry, 374 U.S. 424, 431 (1963); id. at 442-45 (Brennan, J., concurring). 22. 373 U.S. at 144. 23. Id. at 166-67 (White, J., dissenting). 24. Id. at 174-75 (White, J., dissenting). 25. Id. at 146-47. merely "minimum standards"" and were subject to temporal and geographic restrictions." Justice White reviewed the same language and legislative history, but instead found nationwide uniformity to be a clear congressional objective." One by one, the dissent refuted the majority's conclusions on the various issues. Justice White disagreed on the significance of the use of the term "minimum standards": It is also suggested that the use of the term "minimum standards" indicates a lack of desire for uniformity. This reads too much into a phrase, for it is a commonplace that when the appropriate federal regulatory agency adopts minimum standards which on balance satisfy the needs of the subject matter without disproportionate burden on the regulatees, the balance struck is not to be upset by the imposition of higher local standards." Further, he even went so far as to assert that the dissent's conclusion favoring preemption was "inescapable." The only fair conclusion that can be reached based on Florida Avocado and other federal preemption cases" is that the outcome can rarely be deemed "inescapable." Indeed, given the difficulty of the preemption inquiry, the vagueness of the standard, and the vagaries of legislative history, it seems inescapable that reasonable and perceptive minds will often differ. Thus, reliance upon case-bycase adjudication is an extremely imprecise and unpredictable method for resolving the preemption issue. Unquestionably, there will be times when resort to judicial resolution will be unavoidable, as where the issue of supposed conflict is not readily apparent when the federal law is considered. It is, however, self-evident that the difficult, time consuming, and expensive judicial process should not be invoked unnecessarily. For this reason, the courts have repeatedly sought explicit congressional guidance in resolving apparent 26. Id. Justice Brennan distinguished the then recent decision of Campbell v. Hussey, 368 U.S. 297 (1961), by noting that the federal statute in that case, the Federal Tobacco Inspection Act, made numerous references to “uniform standards," and the legislative history supported the notion that Congress intended to establish an exclusive federal standard. 27. 373 U.S. at 148-50. 28. Id. at 169 (White, J., dissenting). 29. Id. at 171 (White, J., dissenting). 30. Id. at 178 (White, J., dissenting). 31. E.g., Jones v. Rath Packing Co., 430 U.S. 519 (1977) (7-2 decision); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) (5-4 decision); Perez v. Campbell, 402 U.S. 637 (1970) (5-4 decision); Hines v. Davidowitz, 312 U.S. 52 (1940) (6-3 decision). confrontations between state and federal legislation.32 The need for congressional direction is acute in the highly regulated consumer credit protection field, where the interests of business and consumers alike are threatened by a congressional failure to preclude confusion and uncertainty by addressing the question of the role of state legislation in a useful manner. Lacking clear guidance, businesses will unnecessarily incur substantial costs as they must undertake the difficult analysis associated with a determination of whether inconsistency and preemption exist. Moreover, unnecessary costs may accrue from complying with state laws that may ultimately be displaced by federal provisons.33 On the other hand, one may be penalized unfairly if a reasonable belief that a law was preempted is later unexpectedly proven incorrect in the courts. II. THE EARLY STANDARD OF RELATION TO In an apparent response to judicial pleas for legislative direction, Congress attempted to provide a legislative guideline for the preemption issue when it enacted the Truth-in-Lending Act in 1968.34 Under that Act, no state law is superseded except to the extent that it is "inconsistent" with the federal legislation or its regulations. While this standard offers some guidance, it is not 32. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. at 146-47; Jones v. Rath Packaging Co., 430 U.S. 519, 525 (1977); Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S. 424, 430 (1963). Such guidance would simplify the preemption determination by eliminating the need for judicial inquiry into the overall purposes of national statutes and into the effect of state laws on the efficacy of those statutes. See Note, supra note 14, at 364-65 and accompanying notes. 33. See Barry, Truth in Lending-A Time for Reform, 26 CATH. U.L. REV. 575, 580-81 (1977). Uncertainty regarding the preemption issue may also deter or inhibit justifiable and needed state legislation. See Gross, Federal Preemption-The Consumer Product Safety Act of 1976 and Its Effect on Wisconsin Law, 1977 W18. L. REV. 813, 818; Low, Preemption of State Credit Reporting Legislation: Toward Validation of State Authority, 24 U.C.L.A. L. REV. 83, 129 (1976). 34. Pub. L. No. 90-321, 82 Stat. 146 (1968) (current version at 15 U.S.C. §§ 1601-1667e (1976)). 35. The Act states: This subchapter does not annul, alter, or affect, or exempt any creditor from complying with, the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of this subchapter or regulations thereunder, and then only to the extent of the inconsistency. 15 U.S.C. § 1610(a) (1968). Two years later, a parallel standard was adopted in the Fair Credit Reporti enough. It eliminates the possibility that anyone would have to struggle with the issue of whether Congress intended to occupy the field of consumer credit disclosure. Moreover, it suggests that state law should be given as much range as possible, being superseded only to the extent of the actual "inconsistency." It is nonetheless a standard almost as uncertain in application as were the various supremacy clause tests developed by the judiciary. In fact, one need only ask the question: "When may a state law be said to be 'inconsistent' with federal law?" in order to realize that the appearance of congressional guidance masks a need to return to the uncertain techniques employed in case law analysis under the supremacy clause.36 Fortunately, the conundrums inherent in such an inquiry did not have to be addressed in the courts without further guidance. Rather, pursuant to its general rulemaking authority under the Truth-in-Lending Act, the Federal Reserve Board (FRB) promulgated section 226.6 as part of Regulation Z." Section 226.6(b) resolved the problem of federal/state interaction by providing that any state law that requires different actions or disclosures with regard to form, content, terminology, or time of delivery is inconsistent. 38 Such an administrative interpretation might have had the same effect with regard to the federal disclosure statement as would a congressional order for complete federal preemption. However, the FRB did not prohibit furnishing disclosures required by the state. Instead, the FRB required in section 226.6(c) that inconsistent state disclosures be made separately, in a manner physically distinct from the federal disclosures.39 Thus, both state and federal interests were superficially vindicated by means of a politically astute compromise. The difficulty resulting from such a compromise is that the mere presence of alternative and conflicting disclosures, even if This subchapter does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. 15 U.S.C. § 1681t (1970). 36. See, e.g., Retail Credit Co. v. Dade County, 393 F. Supp. 577, 581 (S.D. Fla. 1975) (citing supremacy clause cases to support an analysis under the preemption standards of the Fair Credit Reporting Act). physically segregated on paper, are probably not so easily separated in the consumer's mind. If one assumes that the segregated state law disclosure receives the consumer's attention and consideration, the intended effects of federal and state law disclosures are potentially weakened because the consumer is subjected to seemingly contrary or confusing information. Or, the consumer may be exposed to the danger of "information overload," resulting in the consumer not absorbing or retaining the most important information merely because of its volume. Alternatively, one may believe that those dangers are not present because the state disclosures do not receive the consumer's attention. If that assessment is accurate, then the FRB's conclusion of "inconsistency"" could have been carried to its logical conclusion by simply giving full effect to the preemption result and eliminating the inconsistent state disclosures as superfluous. In other provisions of the CCPA, however, the issue cannot be so deftly avoided. In 1975, the first (and to date only) decision dealing with the relation of the federal Fair Credit Reporting Act" to state law was handed down by the United States District Court for the Southern District of Florida. In Retail Credit Company v. Dade County," the district court was presented with four principal issues for decision. Though it purported to interpret the statutory standard of "inconsistency," the court turned for guidance to the methodology of the supremacy clause decisions of the U.S. Supreme Court. Thus, its primary inquiry was essentially the same as the Supreme Court's inquiry in Florida Avocado:" whether the local ordinance "frustrates the effectiveness or purpose" of the federal legislation." This question launches a difficult and often inconclusive journey into the nebulous territory of congressional intent. What are the relative weights to be assigned the language of the Act itself or the interpretations of that language in committee reports, hearings, and debates? How are conflicting interpretations or comments to be resolved? Should the comments of one legislator be accorded greater 40 Id § 226 6(b). 41 15 USC § 1681 (1970). 42 393 F Supp. 577 (S.D Fla. 1975) 43 See text accompanying note 18 supra 44 393 F. Supp. at 581. The court, in passing, ruled out the possibility of actual inconsis tency, the physical inability to comply with one provision of law without thereby violating another, saying "at first glance it appears that compliance with the Ordinance would not entail violating the FCRA since the Ordinance is merely stricter than the FCRA " Id |