It may have been our limited caffeine intake to that point in the day, but, when Bexis asked us to do a post on a case about representations about chicken, our initial thought was of some of the songs sung a la chicken. Like this and this. When we read the decision and saw it was authored by Judge Fischer, we thought about how fishers (the weasel relatives) kill and eat chickens and other “farmed” birds. (They also kill and eat porcupines, which takes rare talent.) At that point, our self-diagnosed mild adult ADD satisfied, we proceeded to read the case. As you would expect if you read the title or had analyzed the trends of when we post about food cases, Arnold v. Kroger Co., No. C-150291, 2016 Ohio App. LEXIS 176 (Ct. App. Ohio Jan. 22, 2016), is not just a case about representations about chicken, it is a case about preemption state law claims based on those representations.
The plaintiffs in Arnold brought purported class action under a variety of Ohio common law and statutory theories based on chicken labeled as “raised in a humane environment” and “humanely raised,” which they said was misleading because the chicken was raised like other mass produced (raised?) chicken. (The chicken was supplied by a non-party company, which used to have television ads proclaiming “it takes a tough man to make a tender chicken,” which could cut for or against the “humane environment” depending on your view.) Title 21 of the United States Code is divided into 27 chapters addressing various things about food and drugs. Chapter 10 is from the Poultry Products Inspection Act (“PPIA,” which you can squawk if you try) and it includes a familiar express preemption provision along with various provisions on inspection, labeling and marketing of poultry. A provision that preempts “marketing, labeling, packaging, or ingredient requirements . . . in addition to, or different than, those [from the PPIA]” should be fairly easy to apply. Id. at **4-5. For private civil actions for damages, the express preemption inquiry starts with the duty that plaintiffs seek to impose under the state law. “Thus, the question here is whether the legal duty upon which each damages action is predicated constitutes an additional or different marketing, labeling, packaging, or ingredient requirement imposed by Ohio.” Id. at *6.
Other than some perverse desire to talk about chicken, we probably would not be discussing this case if the main analysis was all that was at issue. The PPIA gives something called the Food Safety and Inspection Service (FSIS) authority to approve labeling for chicken and it determined the label for the chicken in this case was not false or misleading. Therefore, by contending that specific language in the label—“raised in a humane environment” and “humanely raised”—was false and misleading, “any liability the Arnolds seek to impose based on their state-law claims would attach additional or different terms to the [chicken’s] labeling.” Id. at **6-7. That is pretty straightforward.
The plaintiffs did try something creative, though. They said the PPIA’s labeling purview does not extend to anything about the chickens while they are alive, just to the carcasses or portions of carcasses that are sold. That did not avoid preemption for three reasons. First, the PPIA prohibits labeling that is “false and misleading in any particular,” which logically includes representations about the prior state of the chicken. Id. at *7. Second, the PPIA’s requirement that chicken must be “wholesome, not adulterated, and properly marked, labeled, and packaged” to be sold is tied to a public health purpose, so the “Inspection” part of the Act is not divorced from the labeling part. Id. at *8. Third, FSIS published notice in the Federal Register recounting its finding that “birds that have not been treated humanely” many result in adulterated chicken that is “not acceptable for human food,” indicating humane treatment is part of the decision to approve labels. Id.
It seems to us that this is reminiscent of some of the attempted end runs on device preemption that we see, particularly where the theory of the plaintiff is that something about the materials that went into the finished product should have been the subject of additional warnings in the label. Even if you start with the egg or the hen who laid it—we are not taking sides on the great debate—broad preemptive effect should follow from the requirement that a federal agency assure that labeling for the finished product, whether it be a device or a pack of drumsticks, is not “false or misleading in any particular.” In addition, like the record that the FSIS pays attention to how the chicken lived in allowing its parts to be sold as food, there tends to be a record that FDA pays attention to materials selections and a bunch of other stuff in approving (or clearing) a device and its label. A famous fast food commercial from the 1980s declared “parts is parts” in slighting a competitor’s chicken-based menu item. This may not be an appetizing declaration, but the parts and materials that go into a PMA device should be part of the express preemption picture.