February 24, 2014
Authored by: Brandon Neuschafer
Taking a swipe at the federal preemption defense, the Ninth Circuit broadly interpreted federal regulations on nutritional content to allow state law claims in a class action regarding labeling of sunflower seeds. Lilly v. ConAgra Foods, Inc., No. 12-55921 (9th Cir. Feb. 20, 2014) (reversing dismissal of California state law claims).
Anyone who has eaten sunflower seeds knows you don’t eat the shells. However, a plaintiff brought a class action lawsuit claiming that the sodium content of the edible coating of those shells must be disclosed as part of the nutritional information on the packaging. Apparently, some consumers ingest some of the “Ranch” or “Nacho Cheese” coating when they crack open the shells with their teeth. The causes of action were the typical claims under California’s Consumer Legal Remedies Act (CLRA), unfair competition law and false advertising law.
The California district court dismissed the entire complaint, finding that the plaintiff’s state law claims could not impose requirements different from those in the Nutrition Labeling and Education Act (NLEA), 21 U.S.C. sec. 343. The NLEA has specific preemption language that prohibits states from “directly or indirectly establish[ing]… any requirement for the labeling of food that is not identical” to federal requirements. 21 U.S.C. 343-1(a)(5). And FDA regulations provide that sodium content labeling is not based on the “shell, or other indedible components.” 21 C.F.R. sec. 101.12(a)(6).
While the appellate court did not completely discard any future preemption defense, it found that the coating of the shell – as opposed to the shell itself – could be edible. Therefore, for the purposes of a motion to dismiss, plaintiff’s interpretation of state law would not impose additional requirements to what is required under FDA regulations. There was no conflict, and thus no preemption of the general state laws.
The salty dissent by U.S. District Judge C. Roger Vinson, sitting by designation from the Northern District of Florida, is worth reading. Looking at the plain language of the FDA regulations, he did not draw any nuanced distinction between a shell and the shell coating. He opined that rulemaking should be left up to the FDA, not the courts, and that plaintiff improperly sought to impose requirements not included in the federal regulations.