A federal court in California has dismissed as preempted state-law claims that Smart Balance falsely labeled and advertised its Nucoa® margarine product; the court also denied the plaintiff’s motion to certify a class. Yumul v. Smart Balance, Inc., No. 10-00927 (U.S. Dist. Ct., C.D. Cal., order entered March 14, 2011). Additional information about the complaint, which has twice been amended after previous rulings on motions to dismiss, appears in Issue 359 of this Update.

The defendant argued in its response to the plaintiff’s motion for class certification that the claims were preempted by federal law and thus could not be certified. The plaintiff argued that the defendant had waived this defense by not asserting it in its previous motions to dismiss. According to the court, the defendant did not waive the defense, because it had been preserved in the company’s answer and because the company “is entitled to raise the defense any time prior to or during trial.” The court further noted, “[I]t would promote efficient resolution of the case to consider it in the context of the currently pending motion for class certification.”

The court determined that federal food labeling laws preempted the plaintiff’s claims, but dismissed them with leave to amend to allow the plaintiff to assert claims under California’s Sherman Law, which the plaintiff had raised for the first time in response to the defendant’s preemption arguments. She contended that the company’s labeling and advertising constituted per se violations of the Federal Food, Drug, and Cosmetic Act (FDCA) and that the state’s Sherman Law, under which California has adopted federal regulations as its own, allowed her to enforce those violations. According to the court, “[T]he California Supreme Court has held that the Sherman Law imposes requirements that are identical to those under the FDCA; thus, claims brought under the Sherman Law are not expressly preempted.” The plaintiff will, therefore, be allowed to assert that the defendant’s labeling and advertising did not comply with the Sherman Law.