It’s the day after Labor Day. For some it is the day they mourn the end of summer. For some, it is the start of the countdown to the holiday season (58 days till Halloween, 86 days till Thanksgiving, 113 days till Christmas). But for the vast majority, the first week of September means back to school. Whether it is nervous kindergarteners heading out for the first time, surly teens who have to be dragged out of bed kicking and screaming, or college freshman quickly realizing why no upper classmen take Friday morning classes – it is all part of the back to school ritual. Which got us thinking about some of the greatest school-based movies. There are way too many to name, so apologies from the start if we miss your favorite. But anyone’s short list for high school movies has to include The Breakfast Club, Fast Times at Ridgemont High, Ferris Buehler’s Day Off, Grease, and Dazed and Confused. Graduating to college you have Goodwill Hunting, The Social Network, The Paper Chase, Higher Learning, Old School, and Back to School.

And, of course, the single best movie about college of all time – National Lampoon’s Animal House. “You guys playing cards?” “Guess what I am now.” “Was it over when the Germans bombed Pearl Harbor?” “Toga, Toga.” And who could forget: “Is that a pledge pin? On your uniform?” Of course, true classics like Animal House can’t be replicated, but they can be spoofed. Which is what Twisted Sister did by recreating the pledge pin scene (even getting Mark Metcalf to reprise his Niedermeyer role) for video for their hit “We’re Not Gonna Take It.” Boy, was that a long way around just to say that Monster Beverage decided they weren’t gonna take it either.

That’s right, they decided to go on the offensive. We admire their take control attitude and we like the direction the case is headed. Monster manufacturers a popular brand of energy drinks – which as a class have come under scrutiny for their high levels of sugar and caffeine. The city of San Francisco seems to be among the scrutinizers. It wrote to Monster demanding that it “reformulate its products to safe caffeine levels, provide adequate warning labels, and cease promoting over-consumption” or the City will “file suit forthwith.” Monster Beverage Corporation v. Herrera, 2013 WL 4573959, at *4 (C.D. Cal. Aug. 22, 2013). Monster, rightfully in our opinion, wasn’t about to comply with non-FDA mandated requirements, and nor were they going to wait to be sued. Instead, they filed a complaint against San Francisco’s City Attorney seeking declaratory and injunctive relief. Id. Specifically they alleged federal preemption, FDA primary jurisdiction, and Constitutional claims for content-based speech, compelled speech, commercial speech, and void for vagueness. Id. at *4-5. To sum it up, defendant moved to dismiss for lack of standing and ripeness and for failure to state a claim. The court found Monster had standing and the matter was ripe and found that Monster stated a claim on all counts except void for vagueness and commercial speech. So, the heart of the claims survived.

Here are the portions that most interested us. The first question raised by the City’s motion to dismiss was, could Monster file the suit they did? The court said yes. As to standing, Monster had “suffered an imminent injury that is concrete and particularized.” Id. at *7. The city made demands and threatened litigation for failure to comply. The current suit could redress the injury if it was determined that Monster need not comply. As to ripeness, the City’s demand letter constituted a “concrete action” that defined the “scope of the controversy.” Id.at *8. Hence, the dispute “is not abstract and the lawsuit is not premature.” Id. While not a common path trod by our clients, it’s good to know there are options.

Next up, the speech claims. Monster alleged that San Francisco was violating its First Amendment rights by requiring it to convey “specific messages and warnings,” by restricting certain content or subject matter messages, and by interfering with its labeling and marketing activities. Id. at *11. The City argued that its demand letter did not force Monster to do anything. The Court found the City was missing the point of the lawsuit:

[The City] misunderstands the nature of [its] demand letter. Although [the] letter is not an order that Monster must comply with, [the City] threatened to sue if Monster failed to comply with [its] demands. Therefore . . .Monster brought this action, in order to resolve the legal issues raised in [the] letter.
 

Id. In other words, this is an action to determine whether the City’s demands amount to a First Amendment violation or not. And, that’s allowed. Monster’s commerce claim was stricken because the City was not seeking to enforce a statute that discriminates against interstate commerce. The statute – California’s Sherman Law – is identical to the FDCA. Since the focus of this analysis is on the statute itself, the City’s motion to dismiss was granted. Id. at *16. But, when you turn to the City’s attempted application of that statute, the result is completely different.

And, that’s where we jump to preemption and primary jurisdiction. The Nutrition Labeling and Education Act (“NLEA”) has an express preemption clause prohibiting states from “directly or indirectly establish[ing] requirements for food or any labeling requirements for food that are not identical to” FDA requirements. Id. at *13. While the City claimed its demands were based on the Sherman Law, its requirements went well beyond those imposed by the FDA.

The FDA does not require the disclosures that [the City] seeks to impose on Monster. Likewise, [the City’s] demands to reformulate the energy drinks to lower the caffeine content is also not an obligation imposed by the FDA. Therefore, Monster has alleged sufficiently a claim for declaratory relief pursuant to preemption.
 

Id. at *14.

The court also concluded that Monster sufficiently alleged a claim for declaratory relief based on the FDA’s primary jurisdiction. The FDA has “regulatory authority over food labeling” and expertise in the field. Id. at *15. The FDA has launched its own investigation into issues surrounding energy drinks. Id.And, the City’s issues raise policy questions “best resolved by a regulatory authority.” Id.

The City did, subsequent to this action, file suit against Monster in state court in California. That suit was removed to federal court and motions to remand and to dismiss are pending. While this federal court decision didn’t, and can’t, rule on the City’s claims in its lawsuit, it should serve as a rather large, rather bright signal that those claims are preempted. And wasn’t that Monster’s hope and intent when it decided to go on the offensive. Like we said, it may not be a go-to strategy, but it shouldn’t be overlooked either.

We couldn’t find a direct tie in to get back to Animal House, so given Monster’s difficult and so far successful maneuvering, we’ll use something from another of the college movies we listed. Question: What is the most difficult dive of all time, who performed it successfully, and in what movie? If you think you know the answer, leave it in a comment. We’ll supply the answer tomorrow.