In Young v. Johnson & Johnson, No. 12-2475, 2013 WL 1911177 (3d Cir. May 9, 2013), the Third Circuit affirmed a New Jersey District Court’s dismissal of false labeling claims against Johnson & Johnson, finding that the claims were preempted by the Food, Drug and Cosmetic Act (FDCA) as amended by the Nutrition Labeling and Education Act (NLEA).
Plaintiffs filed suit under the New Jersey Consumer Fraud Act and common law, alleging that Johnson & Johnson sold margarine that was packaged with false and misleading labels because, among other grounds, the manufacturer claimed the product contained “no trans fat” even though trace amounts of trans fat existed. The NLEA expressly preempts state requirements for nutrition labeling that are not “identical” to federal law. The defendant accordingly argued preemption on the basis that federal law required amounts of trans fat less than 0.5 grams per serving to “be expressed as zero.” But plaintiffs countered that, despite this provision addressing “per serving” labeling, no federal regulation explicitly permitted manufacturers to make a factually inaccurate claim that the product as a whole is free of trans fats. Although the Third Circuit acknowledged that “FDA regulations do not specifically say a product can advertise itself as containing ‘NO TRANS FAT’ when it has an insignificant amount,” it looked to other FDA regulations which permit “no fat” or “no saturated fat” labeling for products as a whole under similar circumstances. Id. at *2; 21 C.F.R. § 101.62(b)(1), (c)(1). Using this common-sense reasoning, the Court thus affirmed the district court’s dismissal of the complaint.
This decision rejects the notion that express preemption narrowly depends on an exactly conflicting federal requirement, and makes New Jersey a less appealing place for plaintiffs to bring false nutrition labeling suits.