In one of the very first private surgeon general class actions, plaintiffs alleged that pictures of fruits on fruit drink products conveyed to consumers that the products contain those fruit in amounts greater than the 10% fruit juice common in most fruit juice drinks.  Thankfully, the Central District of California ruled that the FDA’s precise rules regarding pictures of fruit preempted the plaintiffs’ claims.  In cases where preemption arguments have been successful, courts most often hold that the challenged label complies with the Nutrition Labeling and Education Act (NLEA) of 1990, and as a result, any lawsuit seeking a different label runs afoul of the express preemption provision of the NLEA.

The Federal Food, Drug, and Cosmetic Act (FDCA) was enacted to “prohibit the misbranding of food.” In 1990, Congress amended the FDCA, enacting the NLEA to regulate the information required and permitted on nutrition labels. Congress passed the NLEA to establish “uniform national standards for the nutritional claims and the required nutrient information displayed on food labels.” H.R. Rep. No. 101538, at *13 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3342. Consistent with the goal of national uniformity, the NLEA contains an express preemption provision that bars any state-law requirements “not identical” to the NLEA’s labeling requirements. A state-law claim is expressly preempted by the NLEA if it seeks to impose a “requirement” that addresses labeling and is “not identical” to those required by the NLEA.

In recent years, plaintiffs have tried to avoid preemption (and motions to dismiss)  either by focusing on claims that are not regulated by the FDA, such as the now infamous “all natural” litigation,  or by shying away from requests that defendants change federally regulated labels.  For example, plaintiffs now merely demand additional disclosures that are not barred by federal law. However, plaintiffs have faced preemption roadblocks even when they try to plead around them.

In one recent example, Turek v. General Mills, Inc., plaintiff claimed that General Mills and Kellogg violated  Illinois’s consumer protection act by failing to disclose that their snack bars contained inulin, a fiber derived from chicory root, rather than “natural” fiber.  According to plaintiff, inulin did not have the health benefits of natural fiber. The district court ruled that the claim was expressly preempted by the NLEA.  Affirming the dismissal, the Seventh Circuit held that the claim was preempted because “[t]he information required by federal law does not include disclosing that the fiber in the product includes inulin or that a product containing inulin produces fewer health benefits than a product that contains only ‘natural’ fiber.” 662 F.3d 423, 427 (7th Cir. 2011).

In cases where courts have found no preemption, the marketing terms are usually unregulated by the FDA.  In Holk v. Snapple Beverage Corp., for example, the Third Circuit held that a consumer’s lawsuit challenging Snapple’s use of “all natural” on beverage labels containing high-fructose corn syrup were not preempted by the NLEA.  Because the FDA had imposed no requirements regarding the use of the word “natural” and, indeed, was still “carefully considering” the “many facets” of how to define the term, the Court found that the state law claims could proceed.