The Ninth Circuit Court of Appeals has affirmed a lower court’s decision that California cannot enforce its statute regulating the empty space between a product and its packaging against producers of meat and poultry products, finding that the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) preempt the statute. Del Real v. Harris, No. 13-16893 (9th Cir., order entered February 12, 2016).

California Attorney General Kamala Harris appealed a district court’s permanent injunction barring enforcement of the slack-fill law against Del Real, which produces heat-and-serve meat and poultry products. The appeals court’s opinion cites precedent interpreting the FMIA and PPIA as creating a uniform national labeling standard. “When the FMIA and PPIA’s express preemption clauses are read in light of Congress’s concern for uniformity and a lesser level of regulation, it is unlikely that Congress intended for the states to be allowed to develop and apply a more specific standard for slack fill when the Secretary [of Agriculture] has not yet done so,” the court held, noting that the opinion “should not be read to prevent California from exercising its concurrent authority under both the FMIA and PPIA to address misleading packaging of meat and poultry products.”