Federal conflict preemption can be a powerful tool in defeating plaintiffs’ state-law claims about the packaging or labeling of federally regulated products. In general, when a state law conflicts with a federal law, the state law is preempted if Congress expressed clear intent that federal law should govern. Two recent cases in federal court highlight the power of preemption to defeat claims that would require defendants to adopt new standards.
In the first case–Del Real, LLC., v. Kamala D. Harris, Attorney General–the California attorney general had sought to enforce California’s packaging laws against Del Real, LLC, which produces meat and poultry products. Del Real moved for a permanent injunction barring the attorney general from enforcing the provisions of California law that regulate the empty space between a product and its packaging (also known as “slack fill“). The company argued that the Federal Meat Inspection Act and the Poultry Products Inspection Act preempt California law, because the state statute contains different or additional requirements. The district court agreed with Del Real, issuing a permanent injunction. The attorney general then appealed to the Ninth Circuit, and a three-judge panel of the circuit court affirmed the lower court’s ruling. In holding that California law was preempted, the Ninth Circuit emphasized Congressional intent to create a uniform, national standard for the labeling of meat products. Moreover, the court interpreted the fact that the federal law allowed the Secretary of Agriculture to issue slack-fill standards, but did not require the Secretary to do so, to mean that Congress intended for meat products “to be subject to less specific regulation than other types of product packaging.” As such, the court determined that there was sufficient evidence of Congressional intent for the federal meat-packaging laws to preempt California state law on package size.
Less than a week later, the doctrine of federal preemption again felled a case against a food manufacturer, this time in the Western District of Texas. In that multi-district litigation, In re Whole Foods, the plaintiffs brought putative class actions against Whole Foods for allegedly mislabeling the amount of sugar in its store-brand yogurt. Plaintiffs claimed that the yogurt contained much higher amounts of sugar than advertised, and that they were harmed because they paid more for the yogurt than they would have if the labeling were truthful. Rather than commissioning experts to test the yogurt, Plaintiffs relied solely on tests conducted by and published in the magazine Consumer Reports. The magazine had tested six samples of Whole Foods yogurt, and reported that the sugar in the yogurt was over five times greater than the labeled amount.
Defendants moved for the court to dismiss Plaintiffs’ claims with prejudice because the Consumer Reports established a higher standard for labeling than federal law. The Food, Drug and Cosmetic Act and the Nutrition Labeling and Education Act (“NLEA”) empower the Food and Drug Administration (“FDA”) to regulate nutrition labels on packaged food. Moreover, the NLEA expressly preempts state labeling requirements that conflict with federal ones. Under these statutes, the FDA requires a manufacturer to test 12 random samples of its product to determine the nutritional content. As such, the court in In re Whole Foods found that plaintiffs’ attempt to bring a claim based on Consumer Reports‘ six tests was expressly preempted by federal law. According to the court, allowing a claim to proceed based on tests of only six samples would create a more stringent standard for labeling than that required by the FDA.
The court also rejected Plaintiffs’ argument that, in evaluating the defendant’s motion to dismiss, the court should accept as true Plaintiffs’ claim that the yogurt was mislabeled, and then rule on the sufficiency of the mislabeling evidence at a later stage. According to Plaintiffs, ruling on the testing’s federal compliance at the motion-to-dismiss stage would amount to requiring Plaintiffs to conduct FDA-compliant testing on the yogurt before discovery actually began. The court noted that it did not need to decide whether FDA-compliant testing is a pleading requirement in all mislabeling cases, because the plaintiffs acknowledged that they relied solely on testing that did not comport with the FDA’s requirements. Furthermore, the court emphasized that discovery had already begun in the case, and that Plaintiffs had already had “ample time” to conduct FDA-compliant testing on the yogurt. However, the court only dismissed the Plaintiffs’ claims without prejudice, providing them the opportunity to amend their complaint so that it aligns with the federal labeling requirements.
Together, Del Real and In re Whole Foods illustrate that federal preemption, whether expressly required by federal statute or inferred from Congressional history and statutory language, may be a critical tool in cutting short lawsuits that would require defendants to incorporate different or additional packaging or labeling requirements.