San Francisco has always been a great restaurant town, and if anything, the food and dining options have only gotten better over the last 20 years.  Come to think of it, the food and dining scene has improved most everywhere, to the point that you can find a great meal in all parts across the country.  We’ve had the best shrimp and catfish we’ve ever eaten while taking depositions in the South, and, while recently vacationing in a New England town where we spent part of our youth, we could not help but notice the number of really good eateries that were not there before.  (Although one beloved greasy spoon had converted to a Starbucks, so not every change was an improvement.)  Our collective obsession with food is seen further in the proliferation of food-related television programing, including a Food Network, which we will unabashedly admit to watching and enjoying somewhat regularly. 

We are waxing on about San Francisco and food for two reasons. First, this is your blogger’s inaugural blog post, and my law practice is based in the City by the Bay.  I have long admired the Drug and Device Law Blog and especially its contributors, who for many years have carried a banner for those of us on the “right side of the v” with intelligence, wit, and above all relentlessness.  Day in and day out.  Although I am cut from much the same cloth as my co-bloggers, my voice originates from a point west of Princeton, Philadelphia and Washington, D.C., and I am thrilled to be joining the effort.  

Second, the Northern District of California has become somewhat a center for food-related litigation.  Some refer to it as the “Food Court,” although we believe that label is largely promoted by those interested in seeing food-related litigation gain legitimacy and expand.  We have written many times about food litigation, including here and here, because even though we are the Drug and Device Law Blog, the “F” in FDCA stands for Food, and we take lessons from food on such topics as preemption, primary jurisdiction, and claims for consumer remedies. 
 
This leads to a recent order from the Northern District of California where the court dismissed food-related claims in ways that we like, but did not embrace one of our favorite grounds for dismissal – federal preemption.  In Kane v. Chobani, Inc., No. 12-cv-02425, 2013 U.S. Dist. LEXIS 98752 (N.D. Cal. July 12, 2013), the plaintiffs alleged that the defendant had mislabeled its “Greek” yogurt products in three ways – by referring to the yogurt’s sweetener as “evaporated cane juice” when it essentially is just sugar; by falsely claiming “no sugar added” on its website; and by falsely stating that the products were “all natural.”  Id. at *3-*6.  Lawsuits of these kinds, and particularly those focused on whether products are “all natural,” unfortunately have become  familiar, which begs the question in our minds of how much consumers (1) read alleged representations like these and (2) attribute meaning to them in making their purchasing decisions.  Maybe they do, maybe they don’t.  We can’t tell without asking them. 
 
The district court in Kane first addressed standing and found that plaintiffs had standing to pursue only their claims based on “evaporated cane juice.”  The discussion is long and surprisingly detailed, but the upshot is that plaintiffs did not have standing to complain about website content that they did not view, and they could not have relied on the “all natural” representations when the label clearly disclosed the yogurt’s ingredients.  Id. at *14-*34. Refreshingly sound conclusions on both counts.  The plaintiffs had alleged that “all natural” was misleading because some flavors were colored “artificially” with “fruit or vegetable juice concentrate.”  Id. at *30.  But the label said that the defendant added “fruit or vegetable juice concentrate” for color.  Id.  A court ruling that a label is not misleading because it is complete and accurate?  That is a pleasing flavor for any defense lawyer’s palate. 
 
The continuing story, however, is on preemption.  We blogged earlier this year on a similar case in Northern District of California, Brazil v. Dole Food Co., No. 12-cv-01831, 2013 WL 1209955 (N.D. Cal. Mar. 25, 2013), observing that the plaintiffs there had found a friend in medical device parallel violation claims.  California has the Sherman Act, which incorporates federal food labeling regulations by reference.  The plaintiff in Brazil overcame preemption by arguing that he was using California’s statutory remedies to enforce state regulations under the Sherman Act, which were identical to federal regulations.  The district court ruled that these parallel-sounding claims were not preempted.
 
The Kane order reads like the next chapter in the same book.  On implied preemption, the defendant emphasized correctly that only the United States can enforce the FDCA.  But the court ruled that the plaintiffs were suing under California’s Sherman Act and consumer remedy statutes, not the FDCA, and thus were not preempted.  The court put it this way:
 
Although the Sherman Law incorporates the regulations set forth in the FDCA, the Sherman law expressly states that it is incorporating the federal regulations as “the food labeling regulations of this state.”  . . .  Accordingly, when a plaintiff sues under the Sherman Laws, he is not “suing because[Defendant’s labeling] violates the FDCA,” . . . but rather because the Defendant’s labeling violatesCalifornia’s labeling laws.  Kane, at *48-*49 (emphasis in original). 

Readers will recall that the Ninth Circuit held last year in Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), that the FDCA barred claims under the federal Lanham Act claiming that food labeling was false and misleading.  But Pom Wonderfulbarred claims based on federal law; the Kane plaintiffs purported to allege state-law claims, which made all the difference in the world. 

The court likewise rejected express preemption.  The court observed that the statute’s express preemption provision would prohibit a state “from establishing a non-identical requirement relating to the names by which food and ingredients must be referred” and that “private plaintiffs are prohibited from pursuing claims based on state law where the defendant’s labeling meets the relevant FDA labeling requirements.”  So far, so good.  The plaintiffs, however, argued that the FDA actually had expressed the view that “evaporated cane juice” is not the common or usual name of any type of sweetener, although it did so in non-binding documents such as warning letters.  That was sufficient for the court to rule that, by suing under state law for the allegedly misleading use of that very term, the plaintiffs were “not seeking to establish a requirement which is not identical to the FDA's requirements.”  Id. at *50-*59.  Express preemption averted. 
 
Although disappointing on preemption, the order does dismiss the bulk of the plaintiffs’ claims, with leave to amend.  The court invoked the primary jurisdiction of the FDA on one narrow question, with deference to a proposed regulatory standard.  It also found warranty and unjust enrichment claims unsustainable.  The recipe therefore is still being written, and an amended complaint will surely result in more for us to talk about.  In the meantime, we will continue to make our regular treks to the Farmers’ Market at San Francisco’s Ferry Building and purchase fresh produce no matter if it is labeled “all natural.”  We might even buy some wonderful pomegranates.