We have frequently reported on how courts have addressed preemption arguments in the growing number of mislabeling suits that have been filed against food companies. See previous posts here and here. Last week, a federal court in New Jersey denied Tropicana’s motion to dismiss a nationwide putative class action involving Tropicana’s advertising of its “not-from-concentrate” orange juice. Judge Dennis Cavanaugh rejected Tropicana’s argument that the claims were preempted by U.S. Food and Drug Administration rules.  

Plaintiffs in Lynch v. Tropicana Products, Inc. alleged that the “all natural” label on Tropicana’s not-from-concentrate orange juice is improper because the juice is pasteurized and contains added flavoring and coloring. In particular, Plaintiffs complained that Tropicana uses “chemically engineered ‘flavor packs’ derived from sources other than those used to make the juice, including oils from peels of oranges imported from Mexico, Brazil and other foreign countries.” Plaintiffs claimed they were misled by the product’s label into believing it was raw, unprocessed juice that was free of any additives.

Tropicana countered that Plaintiffs’ suit was preempted by FDA regulations for pasteurized orange juice; these regulations only require the label to state that the product has been pasteurized. Allowing the suit to proceed, Tropicana argued, would impose state labeling requirements different than/in addition to those that federal law requires.

Judge Cavanaugh rejected Tropicana’s preemption argument, finding that the state regulations at issue were identical to federal regulations, because both state and federal regulations require “accurate and complete labeling of a product’s ingredients,” including the disclosure of added flavoring.

Judge Cavanaugh also rejected Tropicana’s argument that, because the juice’s label states in all- capital letters that the juice is pasteurized, Plaintiffs cannot demonstrate a “reasonable expectation” that the not-from-concentrate juice was the equivalent of fresh-squeezed juice. Citing the Ninth Circuit’s decision in Williams v. Gerber Products Co., discussed here, the court held:

“That Tropicana has labeled its juice ‘pasteurized’ does not inherently ‘provide a shield for liability for the deception’ that its product has no added flavoring or is 100% pure and natural orange juice.”

The ruling, however, expressly leaves the door open for Tropicana to argue again post-discovery that consumers cannot reasonably expect that juice that is clearly labeled “pasteurized” is fresh juice.