On April 14, 2010, the California Supreme Court denied a petition to review the Fourth Appellate District’s decision in American Meat Institute v Leeman holding the Federal Meat Inspection Act (FMIA) preempts California’s Proposition 65. This decision will provide much needed regulatory certainty, and possibly curtail Proposition 65 abuses.

The AMI case arose because a well-known Prop 65 plaintiff, Whitney Leeman, had given notice of her intent to sue meat packagers for failure to warn consumers that meat supposedly contains harmful amounts of carcinogens and/or reproductive toxins. Leeman claimed that packaged meat contains dioxins and PCB’s, which are listed Proposition 65 substances, and should bear labels stating: “WARNING: This product contains chemicals known to the State of California to cause cancer” or “WARNING: This product contains chemicals known to the State of California to cause birth defects or other reproductive harm.”

AMI sued for declaratory relief, arguing that Proposition 65 is inapplicable because “labeling … requirements in addition to or different than” the FMIA’s are preempted. FMIA requires inspection of all meat to determine whether it is adulterated or misbranded. Meat warranting a passing grade is labeled “inspected and passed.”

The trial court and the court of appeals agreed with AMI. Notably, California’s Attorney General argued in an amicus brief that while warnings stuck to the packaged meat might be preempted, signs on store shelves would not be. Nevertheless, the Fourth District held that in-store Proposition 65 warnings are “labeling” under the FMIA and criticized other cases holding that in-store Proposition 65 warnings are not preempted by laws including FIFRA and FDCA. AMI's preemption analysis is solid, and will, if applied by other courts, substantially help address the regulatory confusion caused by the unduly broad application of Proposition 65.