Recently, an Oregon federal court dismissed a class action against Gerber, the popular baby food company, holding that plaintiff’s state law claim for unfair trade practices was preempted by federal law.  See Nancy Henry v. Gerber Products Company, No. 3:15-cv-02201-HZ (D. Ore.).  The product at issue was Gerber’s Graduate Puffs, which is a cereal snack that comes in a variety of flavors including sweet potato, blueberry, banana and more.

The label of this popular toddler snack indicates that it is “naturally flavored with other natural flavors” but features a large image of a bunch of bananas with banana slices.  As shown in the ingredient list, however, while Gerber Banana Puffs contain “natural banana flavor,” they do not contain actual bananas.  This prominent fruit depiction led Plaintiff to file suit against Gerber in state court in Oregon.

Plaintiff sought to represent a class of consumers who purchased Puffs in the state of Oregon, alleging a violation of Oregon’s Unfair Trade Practices Act (“UTPA”).  Specifically, Plaintiff alleged that Gerber unfairly represented the Puffs products as having certain characteristics, ingredients and qualities, which it allegedly do not have.  Plaintiff’s main gripe is that the marketing and labeling leads consumers to believe that the Puffs actually contain the fruit or vegetable depicted on the label.  Gerber successfully removed the case to federal court based on the Class Action Fairness Act.

After denying Plaintiff’s motion to remand, the District Court of Oregon addressed Gerber’s motion to dismiss.  The crux of Gerber’s motion was that Plaintiff’s UTPA claim was preempted by the Food, Drug, and Cosmetic Act (“FDCA”).  Gerber argued that the FDA regulations permit Gerber to use terms like “Banana” along with a visual image in order to identify the product’s “characterizing flavor.”  Consequently, Gerber asserted that Plaintiff’s claim that the label is misleading because it contains a visual image of a fruit or vegetable is preempted since it seeks to impose requirements that are at odds with the governing federal law.

As set forth in the decision, the FDCA prohibits the misbranding of any food in interstate commerce.  In 1990, Congress amended the FDCA to make uniform standards with respect to food labeling.  With that, Congress amended the FDCA to explicitly preempt certain categories of state labeling requirements that are not identical to federal ones.  The phrase “not identical” means that the state requirements directly or indirectly impose obligations that are not imposed by the applicable regulation or differ from those imposed in the regulations.

With respect to the regulation at issue, the FDCA requires labels bear “the common or usual name of each…ingredient” and further requires foods that use artificial flavorings state as much.  21 U.S.C. § 343(i)(2), 343(k).  FDA regulations permit a manufacturer to indicate the “characterizing flavor” and set forth how the “characterizing flavor” is to be described on the product’s labeling and advertising.  While Plaintiff’s complaint focuses on the fact that Gerber’s Puffs labeling depicts an image of a fruit, the FDA regulations clearly allow such an image to describe the products “characterizing flavor,” even if the product does not actually contain any of the depicted fruit.  Thus, the Court held that Plaintiff’s state law claim under the UTPA was preempted.  The Court noted that the “wisdom of the FDA’s regulations on this topic is a different question for a different day.”

Plaintiff attempted to circumvent this outcome by asserting that her claims arose under the FDCA’s “catch-all” provision, which prohibits any labeling that is “false or misleading.”  21 U.S.C. § 343(a).  Because the express preemption provision did not explicitly mention § 343(a), Plaintiff argued that she may still challenge the Puffs label as misleading despite the label being “technically accurate” according to the regulations.  The Court rejected Plaintiff’s claim, however, finding that it did not withstand “close scrutiny” given that the challenged conduct is expressly permitted by the FDA and thus, falls within the core of the preemption provision.  The Court emphasized that while § 343(a) prohibits labels from being “false or misleading,” labels that are permitted by the FDA are “by definition” not “false or misleading” pursuant to federal law.

Lastly, Plaintiff made one final effort to avoid dismissal, claiming that the Puffs label violated the FDA’s “characterizing ingredient” regulations, which would not be preempted.  The Court, however, rejected Plaintiff’s contention since the FDCA does not contain a private cause of action.  Furthermore, the Court highlighted that other courts have rejected a plaintiff’s attempt to use state unfair trade practices statutes to privately enforce FDCA requirements.  The Court noted, however, that some states, like California, have adopted statutes that mirror the FDCA and provide a cause of action for enforcing the state’s version of the FDCA’s requirements.  Oregon, however, has not adopted such a scheme and thus, the Court found that Plaintiff’s claim was precluded.

While the Court dismissed Plaintiff’s suit against Gerber, it left Plaintiff the opportunity to amend her complaint to add facts to support her challenge to Gerber’s advertising as misleading under Oregon law, which Plaintiff claimed at oral argument would not be preempted.   We’ll continue to monitor this litigation, as well as other successful preemption decisions.