Last month, in Quesada v. Herb Thyme Farms, Inc., 361 P.3d 868 (Cal. 2015), the California Supreme Court did to “organic” foods what it had done to most other foods in Farm Raised Salmon Cases, 175 P.3d 1170 (Cal. 2008) – which is to expose them to still more garbage class actions over labeling that complies with federal government standards.  As we discussed here, in theSalmon cases the court had to work reasonably hard to come up with an (uncodified) food-related exception to the general ban on private enforcement of the Food, Drug & Cosmetic Act (“FDCA”).  

The court had an easier job of it in Quesada because the federal statute that conferred on the Department of Agriculture the power to certify food as “organic” didn’t have a private enforcement provision similar to the FDCA’s 21 U.S.C. §337(a).  Rather, “With respect to enforcement, . . . [t]he act contemplates a cooperative state-federal enforcement regime.”  361 P.3d at 871 (citations omitted).  See also Id. at 875 (with respect to act’s section on “sanctions for misuse of the organic label,” “nothing in [it] suggests these federal remedies are intended to displace whatever state law remedies might exist”).

So why are we telling you this?  We’re not the food blog, after all. Unlike the Salmon decision, this latest addition to food class action mania in California doesn’t even involve the FDCA.

What interests us most about Quesada isn’t actually the result (which is bad enough), but the court’s discussion of the presumption against preemption.  That’s even worse, but apparently isn’t entirely the fault of the California court.  Rather, the fault lies at the doorstep of Justice Kennedy.  We pointed out a couple of years ago that:  (1) the Supreme Court split 4-4 inPLIVA v. Mensing, 131 S. Ct. 2567 (2011), on whether any such presumption existed at all, with Justice Kennedy not voting on the issue; and (2) that in a concurring opinion in Arizona v. Inter Tribal Council, 133 S. Ct. 2247, 2260-61 (2013), Justice Kennedy had questioned the need for a “presumption” in the context of federalism concerns over preemption.

The Quesada decision is illuminating in its detailed discussion of what has happened since regarding the presumption against preemption, and we’re afraid that Justice Kennedy could be headed south on the issue.

In recent years, the continuing vitality of the nearly 70-year-old presumption against preemption has come into question. Four Supreme Court justices have called for its abandonment. [citing CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (concurring opinion), Mensing, and Altria Group, Inc. v. Good(2008) 555 U.S. 70 (2008) (dissenting opinion) – all joined by Roberts, CJ, and Scalia, Thomas & Alito, JJ.]  However, this view has yet to command a majority.  Nor is it clear those justices arguing for presumptionless preemption analysis would apply that approach to obstacle preemption.  CTS Corp.and Altria Group were express preemption cases, while [Mensing] was a conflict preemption case. The separate opinions in the two express preemption cases limited their call for a repeal of the presumption to cases interpreting express preemption clauses, while the conflict preemption case offered a theory of interpretation arguably applicable only to cases where compliance with state and federal law would be impossible.  In contrast, both Chief Justice Roberts and Justice Scalia have continued to sign opinions employing the presumption in obstacle preemption cases [citing Hillman v. Maretta, 133 S. Ct. 1943 (2013)], while Justice Alito has complained of the court’s “giv[ing] short shrift to our presumption against pre-emption” in another obstacle preemption case [citing Arizona v. United States, 132 S. Ct. 2492 (2012) (concurring and dissenting opinion].

For now, the original source of the presumption [citing Rice v. Santa Fe Elevator Corp., 331 U.S. 230 (1947)], and the countless cases that have followed it remain the law.  Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan still endorse and apply a presumption.  [citing, inter alia, CTS, 134 S. Ct. at 2188-89 (Kennedy plurality opinion).

Quesada, 361 P.3d at 878-79 (other citations and footnote omitted) (emphasis added).  The Quesada reference to a post-Mensing opinion written by Justice Kennedy asserting a presumption against preemption dismayed us, so we took a look at the CTS case.

While it turns out that CTS isn’t exactly as Quesada described it – being an application of express, rather than obstacle, preemption – it does appear from CTS that Justice Kennedy has decided to cast his lot with the proponents of a presumption against preemption, at least in a case where non-preemption helps defendants (CTS rejected an attempt by the plaintiff side to preempt a tort statute of repose):

Although the natural reading of [preemption clause’s] text is that statutes of repose are excluded, the Court finds additional support for its conclusion in well-established “presumptions about the nature of pre-emption”. . . .  The effect of that presumption is to support, where plausible, a narrow interpretation of an express pre-emption provision.

CTS, 134 S. Ct. at 2188-89 (citations and quotation marks omitted).  It’s dictum of course, since the Court had already ruled against preemption on the basis of the statute’s “natural reading,” but to some extent that makes what happened in CTS even worse, since Justice Kennedy went out of his way to invoke a presumption against preemption in a case where he didn’t have to.

Thus, the  optimism we expressed last year when we noticed that the Supreme Court had not relied on any presumption against preemption in a decision rejecting field preemption (Rice was a field preemption case), may well prove to be misplaced.  SeeOneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015).  Sadly, we may still have the presumption against preemption to kick around for some time to come (at least until Justice Kennedy changes his mind again).