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Does Federal Law "Preempt" (Block) State Lawsuits for Mislabeling?

The below list explores the show-down between state law and federal law in the area of meat, poultry, medication, dietary supplements, cigarettes, and organic labeling. Consumer grievances are paired against the arguable scope of federal regulation.  

First, what is "federal preemption," and how does it affect meat and poultry labels?

Also referred to as the "Preemption Doctrine," the rule is that federal law supersedes any conflicting state law—a concept rooted in the Supremacy Clause of the United States Constitution.

The Supremacy Clause Jesse Langel

First, federal law can expressly preempt state law through a statute. Second, federal law can impliedly preempt state law with a comprehensive structure and purpose that makes full occupation of the field in question obvious. Congress’ purpose is the “ultimate touchstone” of a preemption analysis.

The movement of livestock and animal carcasses across state lines involves the intersection of state and federal law. Congress has an interest in promoting uniformity and nationwide safety; States have an interest in safety, autonomy, and policing power. 

The question here is whether federal law "preempts" (blocks or prevents) state mislabeling or misbranding lawsuits based on alleged "pre-approval" of labels of meat and poultry. Generally, if federal law already regulates meat and poultry labeling under the FMIA and PPIA, and if Congress intended to exclusively regulate such labeling, then state plaintiffs may not take action that would add an additional or different burden not required under federal law. But state lawsuits that don't impose new labeling "requirements," but mirror what is already prohibited under federal law may be fair game.

The USDA regulates beef, pork, lamb, and poultry, including canned chicken, packaged and powdered eggs, raw produce, and raw vegetables, Packaged or prepared products containing over 50% meat or poultry are also regulated by the USDA. The USDA generally "pre-approves" labels that contain these ingredients.

The FDA regulates seafood, including shellfish fish (except farmed catfish, which is inspected by the USDA), whole eggs, processed fruits, and raw vegetables. The FDA does not pre-approve labels that contain these ingredients. As you can imagine, preemption is more frequently applied to claims involving meat and poultry labeling.

Did Congress intend to exclusively regulate animal-raising claims?

What about circumstances that are not clear as to whether federal law exclusively occupies a particular area of meat or poultry labeling? For example, what if the FMIA or PPIA do not explicitly address label claims about on-farm animal husbandry? Both preemptive clauses appear "silent" on the issue of animal husbandry, and focus on activities related to "official establishments" (slaughterhouses). Plus, what about the fact that both preemptive clauses under the FMIA and PPIA endow states with broad concurrent jurisdiction to help enforce provisions of both federal statutes, including those related to misbranding?

Should the law immunize meat suppliers who make label claims that are actually false but deemed "not misleading" under the pre-approval process under USDA and FSIS standards?

To best understand the body of preemption law, it's best to study the evolution of the case law with an emphasis on U.S. Supreme Court jurisprudence. 

A Chronological List of Court Rulings on Preemption

1966:  New York State had legal authority to convict a meat distributor for misbranding beef frankfurters by adding into them excessive "extenders." Packages containing claims, "all beef" and "all meat" were misbranded as defined under New York Agriculture and Markets Law §§ 199-a, 200, and 201. It did not matter whether Defendant "knew" that the frankfurters were "adulterated" under state law. People v. Omage, 18 NY2d 770, 770-72 (Ct. App. 1966).

1972:   Relating to sausage meat, a state law that required 12% protein, while federal law only required 11.2% protein, exceeded its authority and was preempted under federal law (FIMA). Michigan may only enforce federal misbranding provisions, especially those relating to "ingredient requirements," that are different than its own requirements.  Armour & Co. v. Ball, 468 F2d 76 (6th Cir. 1972).

1973:  Concurrent jurisdiction (states may hear cases in conjunction with federal court) exists under the Federal Meat Inspection Act (FMIA), so long as the state law at issue is identical to the federal law (FMIA). The court held that the FMIA did not preempt the state from enforcing it its own misbranding law. States have a long history of enforcing matters of food safety and food misbranding. Here, the USDA's pre-approval of labeling relating to imitation frankfurters did not preclude misbranding charges that were in total alignment with the directives of the FMIA. In Swift & Co., Inc. v. Walkley, 369 F. Supp. 1198, 1200 (S.D.N.Y. 1973).

1974:  The presence of salmonella in chicken did not render it "adulterated" as defined in 21 U.S.C. 601(m) of the Federal Meat Inspection Act. The presence of salmonella alone, therefore, is not false or misleading, held the majority. A vigorous dissent disagreed with the premise that "labeling non-adulterated meat that is "inspected and passed" can never be false and misleading." The question, held the dissent, is "whether  a label is false or deceptive as determined by the ordinary meaning of the words used." Am. Pub. Health Ass'n v. Butz, 511 F2d 331, 333 (D.C. Cir. 1974).

1986:  Relating to marketing and selling nonkosher meat as kosher meat, statutory penalties against a meat supplier were upheld under New York Agriculture and Market Law. This case supports Congress' intent to preserve the states' roles in regulating misbranded poultry. Matter of Nat Kagan Meat & Poultry, Inc. v. Gerace, 118 AD.2d 1043, 1043-44 (3d Dept. 1986).

1990:   A Lanham-Act plaintiff was unable to rely on its competitor’s alleged lack of substantiation to serve as evidence of actual consumer deception. Plaintiff argued that Defendant Vick’s failed to substantiate an “active” ingredient because of its literal falsity. But to plead a deception injury under the Lanham Act, Plaintiff needed evidence, like survey evidence, to prove actual deception. In contrast, the FDA can conclude deception based on its findings as a federal agency. But a Lanham Act plaintiff is a private party and “is not entitled to the luxury of deference to its judgment.” “The effect of the advertisement on the consumer is the critical determination.” A plaintiff must advance actual evidence of consumer misinterpretation. Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222 (3d Cir. 1990).

1992:  The U.S. Supreme Court rejected an implied-preemption theory in a cigarette-labeling case to nullify a state breach-of-warranty claim. The court held, “a common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a requirement ... imposed under State law.” Only warning or labeling requirements would have been preempted—not state-law damages. Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992). Down below is Canards (2017), which cites Cipollone to support its holding in a foie gras sales-ban case: "[t]he PPIA, which is silent on the topic of animal husbandry and feeding practices may not be read to supplant state law on an entirely different topic." Assn. des Éleveurs de Canards et d'Oies du Quebec v. Becerra, 870 F3d 1140 (9th Cir. 2017).

1994:  California state law that added a temperature requirement on raw-chicken labels that sought to use the word "fresh" transcended its authority under the Poultry Products Inspection Act (PPIA). The "fresh" requirement was "in addition to" or "different than" requirements under PPIA, since the PPIA had no such requirement. The court acknowledged, however, the applicability of concurrent jurisdiction—state's power to enforce the PPIA label requirements that were identical to the PPIA. National Broiler Council v. Voss, 44 F.3d 740 (9th Cir. 1994).

1994:   States may impose poultry-inspection standards even more rigorous than federal standards. Rather than displace state inspection standards, Congress envisioned a "marble cake scheme" where federal and state regulations would operate together. In fact, the federal secretary "offers state inspection programs technical and laboratory assistance, training, and partial funding." See U.S.C. § 454(a). Miss. Poultry Ass'n v. Madigan, 31 F.3d 293, 296 (5th Cir. 1994) (en banc).

1996:   Relating to a faulty pacemaker, the U.S. Supreme Court denied preemption under the Medical Device Amendments to the FDCA (Food, Drugs, and Cosmetics Act). The plaintiff's negligence claim survived. Such a negligence claim merely enforced the federal Act, and did not impose any requirement that was different from, or in addition to, what was prescribed under federal law. In other words, the "presence of a damages remedy does does not change what is necessary under the statute; rather, it merely provides another reason for manufacturers to comply with identical existing requirements under federal law."  Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

1998:  The Federal Cigarette Labeling and Advertising Act clearly and expressly preempts state laws on matters of labeling and advertising in cases premised on label disclosures and failure-to-warn theories. But in Geiger, a New York appellate court declined to preempt class-action Plaintiffs—who extracted lung and throat cancer—from asserting fraud and implied-warranty claims independent of labeling and advertising (i.e. product liability and warranty of fitness). The court, citing Cippilone (above), held that only labeling requirements were preempted—not state-law-tort damages. Here, in Greiger, Plaintiffs alleged that Phillip Morris and 11 other cigarette companies manipulated nicotine levels in ways that contributed to independent harms from a defective product. Upon remand, however, the class plaintiffs had failed to show common questions of law and fact needed to certify the class.  Geiger v. Am. Tobacco Co., 674 N.Y.S.2d 775 (N.Y. App. Div. 2d Dept. 1998).

The scope of the Cigarette Labeling Act is so instructive for clarity, I cite it here: 

Federal Cigarette Labeling and Advertising Act of 1969

15 U.S.C.A. § 1331. Congressional declaration of policy and purpose

It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby--

  1. the public may be adequately informed about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement of cigarettes; and
  2. commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

1999:   Similar to Grieger above, the legal theories in Plaintiffs’ cigarette class action were not preempted to the extent they were not premised on labeling or disclosures. Theories of strict products liability, fraud, and negligence were not preempted. This Labelle case cited Greiger, along with New York Appavoo v. Philip Morris, Inc. (N.Y. Sup.Ct. 1998) and Castano v. American Tocacco Co. (E.D. LA 1994) for the proposition that breach of implied warranty of merchantability is based on the “general warranty that a product is fit for use, and is thus independent of advertising and promotion.” The focus of implied warranty of merchantability is on the nature and characteristics of the product itself—not on warnings or labels. LaBelle v. Brown & Williamson Tobacco Corp., 2:98-3235-23, 1999 WL 33591435, at *6 (D.S.C. Mar. 18, 1999).

2000:   Puerto Rico’s separate inspection-date requirement to appear in a federal inspection certificate was preempted by the Poultry Products Inspection Act. The PPIA, through comprehensive regulations, already dictates what must appear in official certificates and U.S. markings. The regulations omit a date-of-inspection requirement, which infers an intent to do so in this clearly occupied area. Northwestern Selecta, Inc. v.Munoz, 106 F.Supp. 2d 223 (D. Puerto Rico 2000).

2000:   As to nutritional misrepresentations alleged against “Power Bar,” the federal NLEA did not preempt New York GBL §§ 349 and 350. The alleged misconduct violated NLEA by misrepresenting the amount of fat, vitamins, minerals and sodium contained in the bars. This parallel state action to obtain a private remedy for an identical federal violation was consistent with NLEA’s intent for state involvement. Rather than conflicting with federal law, GBL § 349(d) actually exempts any act or practice subject to, and in compliance of, with federal rules, regulations or statutes. Morelli v. Weider Nutrition Group, Inc., 275 AD2d 607, 607-08 (1st Dep't 2000).

2005:   Peanut farmers who brought state-law claims against Dow for injurious pesticides were not preempted under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This Act preempts state claims premised on requirements for labeling or packaging. Alive and well were state tort theories not related to packaging, such as defective design, defective manufacture, negligent testing, and breach-of-express warranty claims.  Bates v Dow Agrosciences LLC, 544 U.S. 431 (2005).

2007:   The Federal Meat Inspection Act (FIMA) did not preempt Texas' prohibition against serving horse meat to Texans. FIMA does not preempt the field of meat commerce entirely. For implicit preemption to occur, a state law must be in direct conflict with federal law, or the federal law must occupy a field so pervasively so as to naturally exclude the state law. Field preemption requires a clear congressional intent of field exclusively.  Empacadora de Carnes de Fresnillo, S.A. de C.V., v. Curry, 476 F3d 326, 331 (5th Cir. 2007).

2008:   Poultry labeling, while the province of the USDA generally, may transcend labeling and constitute actionable advertising if coupled with advertising. For example, point-of-purchase materials that contain additional images and promotional slogans may be actionable under the Lanham Act. Poultry labeling is under the jurisdiction of the USDA. Poultry advertising is under the jurisdiction of the FTC but may also exposed be to private action under state law. In the label-review process for poultry, "FSIS's determination involves a highly technical and scientific review of the proposed label language, it does not involve a review of whether the language is misleading to the consumer when combined with images and promotional slogans." Tyson's claim, "Raised Without Antibiotics that impact antibiotic resistance in humans" was not afforded preemption. Sanderson Farms v. Tyson Foods, 549 F. Supp. 2d 708, 720 (D. Md. 2008).

2008:   State common-law allegations against a manufacturer for a defective balloon catheter were preempted, held the U.S. Supreme Court. The Medical Device Amendments of 1976 to the Food, Drug, and Cosmetic Act required pre-approval of the Stage III device. The FDA had already established requirements for the device, and the patient did not allege a violation of any of those federal requirements(s). In the pre-approval process, the FDA reasonably assured the product’s safety and effectiveness, reasoned the court. The patient's negligence, strict liability, and breach of implied warranty claims were preempted. State-law tort suits would interfere with the FDA’s extensive pre-market approval process for Class III devices. “Federal agencies are better positioned to set standards of care than common law courts,” noted the court. Riegel v Medtronic, Inc., 552 U.S. 312 (2008).

2009:   The FDA, pursuant to the Food, Drug, and Cosmetic Act (FDCA) did not preempt a musician's state-law product-liability lawsuit against Wyeth over an injurious I.V. push medication. The state action did not "pose an obstacle" to the FDCA but instead "offered an additional and important layer of consumer protection that complements FDA regulation." Wyeth v. Levine, 555 U.S. 555 (2009).

2009:   Pasta sauce containing “high fructose corn syrup” but marketed as “all natural” survived an implied-preemption attack under the Food, Drug, and Cosmetic Act (FDCA). The Nutrition Labeling and Education Act (NLEA) added a “savings clause” to the FDCA’s preemptive statute that expressly disavows implied preemption. (“The [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. § 343–1(a) ].” Pub.L. No. 101–535, § 6(c)(1) (21 U.S.C. § 343–1 note). Like other federal Acts, the FDCA’s preemptive statute contemplates state involvement to help enforce parallel cases, which is clear evidence against Congressional intent to exclusively occupy such nutritional labeling. Moreover, the FDA’s “policy” of defining “natural” as “nothing artificial or synthetic added” constitutes an unenforceable advisory opinion—not an authoritative regulation that would connote field preemption. Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028 (N.D. Cal. 2009).

2010:   An aspirin label that met the "floor" requirements of federal regulation did not immunize Bayer for misrepresentations of safety and effectiveness, which is a "traditional claim of consumer misrepresentation." A label merely compliant under the FDCA does not "indicate that it could not still be misleading and therefore actionable under state consumer protection laws." In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig., 701 F.Supp.2d 356, 375–76 (E.D.N.Y. 2010).

2011:  The National Childhood Vaccine Injury Act expressly preempted a private, design-defect lawsuit in state court. The Act intended to encourage vaccine improvements while providing immunity for design-defect claims. The Vaccine Act states that “[n]o vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death ... if the injury or death resulted from side effects that were unavoidable.” Implied preemption may apply to activity outside the explicit scope of the federal preemptive clause. Generally, the presumption against preemption can be overcome. Bruesewitz v Wyeth Inc., 561 F3d 233 (3d Cir 2009), affd sub nom. Bruesewitz v. Wyeth LLC, 562 US 223, 131 S. Ct. 1068 (2011).

2012:  The U.S. Supreme Court held that the FMIA preempted a California law governing slaughterhouses' dealings with non-ambulatory pigs. The California law was passed in response video evidence of animal cruelty at a slaughterhouse. FMIA explicitly addresses slaughterhouse operations so the California statue "runs smack into FMIA regulations." Natl. Meat Ass'n v Harris, 565 U.S. 452 (2012).

2013:   As discussed in this blog, the court denied a preemption argument involving a label with the claim, "humanely raised" as being deceptively close to a near claim, "USDA Process Certified." Both a breach of express-warranty-claim and a fraud claim survived a dismissal motion.  Hemy ((Does 1-10) v. Perdue Farms, Inc., (Does 1-10) CIV.A. 11-888 MAS, 2013 WL 1338199, at *1 (DNJ Mar. 31, 2013).

2013:   Relating to genetically modified corn in soup, a preemption defense was granted against an attack of Cambell's "all natural" claim in chicken soup but denied against an "all natural" claim in vegetable soup. The chicken-soup labeling is under the jurisdiction of the USDA—which pre-approves chicken labeling after it determines its truth. The vegetable soup, however, is under the jurisdiction of the FDA, which does not pre-approve non-meat labeling. Furthermore, the FDA's refusal to define "all natural" indicated its intent not to occupy the field of "natural" claims on labeling. The FDA enacted no “requirements regarding ‘natural’ for the Court to endow with preemptive effect.” Unfortunately for the plaintiffs, the court found that the FDA administrative process was better suited to resolving the "all natural" dispute under the doctrine of primary jurisdiction. The court dismissed the case on that basis. For information about FDA pre-approval, see this blog.  Barnes v. Campbell Soup Company, 2013 WL 5530017 (N.D. Cal. 2013).

2013:  A vegan food producer of meatless foie gras (a pate produced by the livers of forcefully fattened ducks) sued a producer of meat foie gras claiming that the use of the slogan "the humane choice" cut into Plaintiff's sales. The case was brought under the Lanham Act, a federal statute giving private businesses a cause of action for injurious false marketing of competitors. Article III standing was established for the vegan food producer, but was not established for the co-plaintiff, Animal Legal Defense Fund, a non-profit animal-advocacy group. The Lanham Act remedies commercial injuries only. Animal Legal Defense Fund v. HVFG LLC, 939 F Supp. 2d 992 (N.D. Cal. 2013).

2014:   Preemption was not applied in a private Lanham-Act case by Pom Wonderful against Coca-Cola for allegedly misrepresenting the amount of pomegranate and blueberry juices in Minute Maid juice. Preemption was not at issue—preclusion was—since the “state-federal balance” was not in question. Here, the issue was whether the FDA, pursuant to the federal FDCA, precluded another federal statute (Lanham Act) from providing a private remedy. No, it doesn’t because a) the two statutes are complementary and have co-existed for 70 years b) the FDCA’s preemption clause does not preempt anything federal c) the FDA does not pre-approve juice labels, and d) there’s no textual evidence to support such preclusion, especially considering that both statutes serve different purposes. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014).

2014:  The express preemption clause of the Nutrition Labeling and Education Act (NLEA) did not stop a New York State consumer lawsuit over the ad claim of “fat free” milk that was Omega-enriched and thus not "fat free." The omega enrichments raised the milk fat content to one gram per serving, which exceeded federal regulation for “fat free.” NLEA’s express preemption clause withholds preemption of state law that does not conflict with the NLEA, which it did not in this case. The state laws at issue imposed no affirmative requirement that would have differed from federal law. Moreover, private remedies under state law arising from violations of federal law are generally recognized. Koenig v. Boulder Brands, Inc., 995 F Supp 2d 274 (S.D.N.Y. 2014).

2014:   Held not preempted were mislabeling claims against Whole Foods for advertising as “All Natural” products that contained Sodium Acid Pyrophosphate (“SAPP”), a synthetic ingredient. The FDCA, as amended by the NLEA of 1990, “expressly contemplates” that states will enforce their own food-labeling requirements, which must be ‘identical’ to the FDCA. The FDA has not issued a regulation defining the word “natural” but has “articulated a ‘policy’” to dictate that “natural” excludes anything artificial or synthetic. Taken on judicial notice was an FDA warning letter sent to a different company that concluded that SAPP contained in an “all natural” food product was false and misleading. Moreover, listing a [synthetic] ingredient in the ingredient list does not shield liability for deceptive messaging on packaging. Garrison v. Whole Foods Mkt. Group, Inc., 13-CV-05222-VC, 2014 WL 2451290, at *1 (N.D Cal. June 2, 2014), citing, Williams v. Gerber Products Co., 552 F3d 934 (9th Cir. 2008)(“fruit juice and other all-natural ingredients” placed on juice snacks for toddlers “to help toddlers grow up strong and healthy” were not cured of deception by an ingredient list; “reasonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box”).

2015:   Vermont’s statute requiring manufacturers and retailers to disclose genetic engineering in food was not “conflict preempted” by the FDCA as amended by the NLEA. Vermont’s disclosure requirement did not mandate modifications inconsistent with federal law. However, the statute’s restriction on the use of the word “natural” with genetic engineering was deemed an unconstitutional limitation on commercial speech. Grocery Mfrs. Ass'n v. Sorrell, 102 F Supp. 3d 583 (D. Vt. 2015).

2015:   In New York, the plaintiffs alleged that "natural" and "all natural" body care products contained 72 artificial or synthetic ingredients, which were prohibited by the Organic Foods Production Act of 1990. The court held that the products' "organic" status did not preempt a parallel false-advertising case. Segedie v Hain Celestial Group, Inc., 14-CV-5029 NSR, 2015 WL 2168374, at *2 (S.D.N.Y. May 7, 2015).

2015:   With regard to "organic" labeling, California's highest court ruled that the intentional commingling of organic and non-organic herbs was not preempted by the Organic Foods Production Act of 1990. The Act's preemption applied only to 1) defining organic production and 2) certifying products as organic. The Act's express language does not preclude state lawsuits for misuse of an organic label to deceive consumers. Similar to other cases cited above, compliance with the federal Act is "only a floor, not a ceiling." Quesada v. Herb Thyme Farms Inc., 62 Cal.4th 298 (Cal. 2015).

2016:   Plaintiffs claimed that Monster Beverage Corp. mislabeled its energy drinks as to caffeine amounts, effects, and safety. The court preempted only those legal theories that would compel further caffeine disclosures. Caffeine labeling is already regulated under 21 U.S.C. § 343(q) (caffeine need only be in the ingredient list— not specified as to amount). The need for safety warnings though is specifically carved out of the preemptive clause of FDCA. 21 U.S.C. § 343–1. As to other allegedly deceptive label advertising (“ideal combo” [of ingredients], etc.), the court found that the removal of such content did not equate to a “requirement” that would implicate preemption. Nor would the imposition of a safety warning implicate preemption because it is expressly excluded from preemption, as stated above. See Pub. L. No. 101–535, § 6(c)(2). “On-label claims or omissions that do not trigger caffeine-disclosure requirements are not preempted by the FDCA.” Fisher v. Monster Bev. Corp., 656 Fed. Appx. 819 (9th Cir. 2016)(unpublished).

2017:   With respect to "100% natural" and "no preservatives" claims on a chicken label, the court found that the USDA's pre-approval of the label must given given preemptive effect over state-law claims that, if granted, would require a different marking than what was contained on the label. Plaintiffs' claims were ingredient challenges. Unlike the FDA, the USDA has defined the word "natural" and "regulates it by requiring pre-approval by FSIS before the term can be used on a product label in the marketplace." Plaintiffs did not allege that Hormel misrepresented facts to FSIS; nor allege that Hormel prepared final labels that did not comport with approved sketch labels; nor allege that Hormel sold products that did not conform to pre-approved labels. Phelps v. Hormel Foods Corp., 244 F Supp. 3d 1312 (S.D. Fla. 2017).

2017:   A California statute banning the in-state sale of foie gras was not preempted—either expressly or impliedly. Foie gras is liver pate made from forced-fed ducks. Banning cruel feeding practices does not “stand as an obstacle to the PPIA’s objectives of regulating official establishments that slaughter and process poultry.” Nor did the statute hinder the PPIA from “ensuring that poultry products are wholesome, non-adulterated, and properly marked, labeled, and packaged.” The Ninth Circuit reversed below, holding that “Congress made clear that the PPIA's ‘ingredient requirements’ address the physical components of poultry products, not the way the animals are raised.” Assn. des Éleveurs de Canards et d'Oies du Quebec v. Becerra, 870 F3d 1140 (9th Cir. 2017).

2017:   The Southern District of New York declined to preempt, under the PPIA, California’s sales ban on forced-fed foie gras. The case was transferred from California to New York, the location of Defendant’s operations. “Transferee courts are obligated to apply the law that the transferor court would have applied.” Plaintiff argued that the sale of the offending foie gras violated California Health and Safety Code Section 25982 (“A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size”). Plaintiff further argued that violation of 25982 served as a predicate for violating California’s deceptive business-practices statute (“UCL” or “§ 17200”). As a separate issue, Plaintiff was not permitted to claim a violation of New York’s Animal Cruelty Statute (N.Y. Agric. & Mkts. Law § 353) as a predicate for violating California’s § 17200—only federal law or California law can serve as a predicate for violating California’s UCL.  The Southern District relied on the preceding Canards case (above), which ruled that the PPIA did not preempt California’s ban of forced-fed foie gras. The court found that the “‘ingredient requirements’ of the PPIA cannot be read to reach animal husbandry practices because the federal law does not regulate in any manner the handling, shipment, or sale of live poultry products.... The USDA has even represented in legal filings that ‘[t]he PPIA is wholly silent on the treatment of farm animals, (including feeding procedures) or methods of slaughter for poultry.’” citing, Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Becerra, No. 15-55192, 14–15 (9th Cir. Sept. 15, 2017). The PPIA does not “mandate that a particular type of poultry be produced or not produced.” Moreover, under their policing powers, states may regulate the types of poultry sold within their borders under the PPIA. Evolution Fast Food Gen. Partnership v. HVFG, LLC, 15 CIV. 6624 (DAB), 2017 WL 4516821, at *8 (S.D.N.Y. Sept. 27, 2017), reconsideration denied, 15 CIV. 6624 (DAB), 2018 WL 1779377, at *3 (S.D.N.Y. Mar. 28, 2018) (the court refused to re-litigate the preemption issue based on Canards, and further noted that SDNY was not bound by Canards yet was persuaded by it).

2017:   Relating to cows that allegedly consumed GMO feed, the court rejected Plaintiffs’ claim that the milk produced therefrom was not “natural” and therefore actionable. Plaintiffs did not contend that Dannon’s milk contained unnatural ingredients. Instead, Plaintiffs “speculated” that since the cows at issue consumed GMO feed, were given antibiotics, and were raised to increase milk yield, reasonable consumers were deceived into purchasing unnatural milk. The court found Plaintiffs’ claims to be “speculative,” “conclusory,” and a general grievance against animal husbandry and GMO use worldwide. Currently federal law does not require labels to disclose GMO in products from which animals consumed GMO feed. See 7 U.S.C.A. § 1639b (prohibiting “a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance”). Podpeskar v Dannon Co., Inc., 16-CV-8478 (KBF), 2017 WL 6001845, at *3 (S.D.N.Y. Dec. 3, 2017).

2018:   In an infection-disease case (salmonellosis), an infant suffered brain injury and died. The Craten family sued Foster Poultry Farms, Inc. alleging negligence, strict liability, failure-to-warn, and breach of implied warranty of merchantability. The family tied together evidence of a) a salmonellosis outbreak involving poultry processed by Foster Poultry Farms, Inc., and b) circumstantial causation evidence, including expert reports, linking the boy’s disease to the particular outbreak strain tied to the Foster Farms’ poultry. Aside from the family’s failure-to-warn theory, which implicated a preempted labeling issue, all other causes of action were not preempted. Foster Farms argued that all other causes of action (negligence, strict liability, and breach of implied warranty) related to the “adulterant” salmonella, and that the USDA was already charged with regulated adulterated poultry. But recall the 1974 case summarized above, Am. Pub. Health Ass'n v Butz, in which the majority held that the presence of salmonella alone in chicken was not an “adulterant” under federal law and did not alone render a label false or misleading. The distinction in Craten was that the salmonella was connected to a disease outbreak, and for that reason, the court declined to preempt injuries stemming from that outbreak. The court found that a jury would not have to “invade the province of the FSIS to find for the Cratens.” The legal theories of strict liability and breach of implied warranty did not survive as a matter of law, however, since a) salmonella occurs naturally in poultry and b) raw chicken is known to be safe when properly cooked. But the negligence theory went to a jury, which awarded the boy $6.5 million in damages. But the family’s contributory negligence, for failing to properly cook the chicken, accounted for 70% of the injury’s cause, reducing the net verdict for the family to $1.95 million. Craten v. Foster Poultry Farms Inc., 305 F Supp. 3d 1051 (D. Ariz. 2018).

2018:   An ingredient-composition (water %) challenge to Costco’s Kirkland’s canned chicken was deemed preempted but Kirkland’s physical packaging, can sizing, shelf pricing, and unit pricing—that which do not “implicate FSIS-approved labeling”—were not preempted. In the case, Plaintiffs primarily asserted that Kirkland failed to disclose its water percentage on the cans in violation of federal regulation. The court, however, noting Kirkland’s “Product Formula” disclosures required by FSIS Form 7234–1 needed for pre-approval, coupled with liquid percentages already spelled out in Table II of federal regulation (9 C.F.R. § 381.157(b), were comprehensively broad and detailed to deserve preemptive effect. But, held the court, “FSIS review and approval may not be an impenetrable barrier to state law deceptive practice claims,” generally. As an evidentiary matter, Kirkland’s purported FSIS Form 7234–1 was not taken on judicial notice since its authenticity was disputed. Plaintiffs’ non-preempted claims (physical packaging, can sizing, shelf pricing, and unit pricing) were deemed not materially misleading, however, and were dismissed as a matter of law. The 2nd Circuit Court of Appeals affirmed on both grounds: 1) PPIA regulations were provided preemptive deference on the ingredient-composition challenge; and 2) Kirkland’s other materials would not deceive the reasonable consumer. La Vigne v. Costco Wholesale Corp., 284 F Supp. 3d 496, 506 (S.D.N.Y 2018), affd, 772 Fed Appx 4 (2d Cir. 2019).

2020:   Milk sourced from “happy cows” on “Caring Dairy” farms expressed on one page of Ben & Jerry’s website was insufficient to plausibly allege actionable consumer deception. These statements, along with images on packages, were “intended to project to consumers an ‘image of animal husbandry’ that is more environmentally friendly than typical mass dairy production,” alleged Class-Action Plaintiffs. Furthermore, only 25% of the milk farmers participated in the “Caring Dairy” program while all others relied on “intensive cow confinement practices and extensive antibiotic use, which constituted a material omission, alleged Plaintiffs. But the “Caring Dairy” is voluntary and farmers who qualify receive higher compensation. The court found that Plaintiffs failed to plausibly allege that reasonable consumers would a) have seen the website claim before the purchase; and b) conclude that all milk in Ben & Jerry’s ice cream were “sourced exclusively from happy cows.” Plaintiffs assumed the milk was “sourced exclusively” [from "happy cows"], an interpretation rather than an actual misrepresentation, held the court. Materiality (significance when purchasing), which is a “mixed question of law and fact,” was not met here as a matter of law, held the court. Nor was the court convinced that the plaintiffs pleaded damages under the legal theories of breach of express warranty and unjust enrichment. The case was dismissed without prejudice. Ehlers v. Ben & Jerry's Homemade Inc., 2:19-CV-00194, 2020 WL 2218858, at *6 (D. Vt. May 7, 2020).

To be continued...

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