In re Farm Raised Salmon Cases

Decision Date11 February 2008
Docket NumberNo. S147171.,S147171.
Citation42 Cal.4th 1077,175 P.3d 1170,72 Cal.Rptr.3d 112
CourtCalifornia Supreme Court

Hagens Berman Sobol Shapiro, Craig R. Spiegel, Seattle, WA, Lee M. Gordon, Elaine T. Byszewski, Los Angeles, and Steve W. Berman, for Plaintiffs and Appellants.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Albert Norman Shelden, Assistant Attorney General, and Ronald A. Reiter, Deputy Attorney General, as Amici Curiae on behalf of Plaintiffs and Appellants.

Kevin S. Golden for The Center for Food Safety, San Francisco, as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kamala D. Harris, District Attorney (San Francisco), June D. Cravett, Assistant District Attorney; Gary Liberstein, District Attorney (Napa), Daryl Roberts, Deputy District Attorney; Stephan R. Passalacqua, District Attorney (Sonoma), Matthew T. Cheever, Deputy District Attorney; Thomas J. Orloff (Alameda), Lawrence C. Blazer, Assistant District Attorney; Dolores A. Carr, District Attorney (Santa Clara), Robin B. Wakshull, Deputy District Attorney; Edward S. Berberian, District Attorney (Marin), Robert E. Nichols, Deputy District Attorney; James P. Fox, District Attorney (San Mateo), John E. Wilson, Deputy District Attorney; Gregory D. Totten, District Attorney (Ventura), Gregory W. Brose, Deputy District Attorney; Dean D. Flippo, District Attorney (Monterey), Steven Hollett, Deputy District Attorney; David W. Paulson, District Attorney (Solano), Criselda B. Gonzalez, Deputy District Attorney; Bonnie M. Dumanis, District Attorney (San Diego), Patricia Pummill, Deputy District Attorney; Bob Lee, District Attorney (Santa Cruz), William Atkinson, Deputy District Attorney; Rockard J. Delgadillo, City Attorney (Los Angeles) and Don Kass, Assistant City Attorney, as Amici Curiae on behalf of Plaintiffs and Appellants.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, David C. Allen, Johanna R. Shargel, Los Angeles; Streeter & Nangano, Thomas Barclay, Michael Nangano, Michael L. Coates; Greenberg, Glusker, Fields, Claman, Machtinger & Kinsella, Greenberg Glusker Fields Claman & Machtinger, Norman Howard Levine, Los Angeles; Ervin, Cohen & Jessup, Allan B. Cooper, Beverly Hills, Tamara L. Dewar; O'Melveny & Myers, Carla J. Christofferson, Los Angeles; Seyfarth Shaw, Jay W. Connolly and Geoff S. Long for Defendants and Respondents.


Plaintiffs filed a class and representative action alleging that various grocery stores violated state law by selling artificially colored farmed salmon without disclosing to their customers the use of color additives.1 Defendants successfully demurred in the trial court, arguing the action was preempted by section 337(a) of title 21 of the United States Code, a provision of the Federal Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. § 301 et seq.).2 The Court of Appeal affirmed the resulting judgment of dismissal.

We granted review to decide whether plaintiffs' action was preempted by the FDCA. We conclude that section 337(a) does not preempt the action as plaintiffs do not seek to "enforce[ ], or to restrain violations" of, the FDCA. (§ 337(a).) Rather, plaintiffs' claims for deceptive marketing of food products are predicated on state laws establishing independent state disclosure requirements "identical to" the disclosure requirements imposed by the FDCA, something Congress explicitly approved in section 343-1. (§ 343-1(a)(3).) Accordingly, we reverse the Court of Appeal's judgment and remand the matter to that court for further proceedings consistent with our opinion.

A. Facts and Procedural History

Various individuals initiated separate actions against defendants alleging the grocery stores sold artificially colored farmed salmon without disclosing to consumers the use of color additives.3 The separate actions were coordinated in Judicial Council Coordination Proceeding No. 4329.

In March 2004, plaintiffs filed a coordinated complaint alleging as a class and representative action that fish farmers feed farm-raised salmon the chemicals as-taxanthin and canthaxanthin to obtain a color of flesh resembling that of wild salmon.4 Plaintiffs allege the flesh of farm-raised salmon appears grayish without the chemical additives and that consumers believe the color of salmon is an indication of its origin, quality, freshness, flavor, and other characteristics. Plaintiffs allege that concerns have been raised about the potential health risks of consuming the artificial coloring agents in particular and farm-raised salmon in general. They further allege that parallel federal and state laws require food labeling to state that farmed salmon is artificially colored and defendants failed to comply with those requirements. Plaintiffs also allege the failure to disclose the use of artificial coloring has caused consumers to believe farmed salmon is wild salmon.

The complaint asserts four state law causes of action: (1) violation of the unfair competition law (UCL) (Bus. & Prof.Code, § 17200 et seq.); (2) unfair or deceptive trade practices under the Consumers Legal Remedies Act (CLRA) (Civ.Code, § 1750 et seq.); (3) violation of the false advertising law (Bus. & Prof.Code, § 17500 et seq.); and (4) negligent misrepresentation. The laws alleged to be violated as a predicate for the "unlawful" prong of plaintiffs' UCL claim (id., § 17200) include provisions of the state Sherman Food, Drug, and Cosmetic Law (Health & Saf.Code, § 109875 et seq.) (Sherman Law).5

Defendants jointly demurred on several grounds, including that (1) section 337(a)6 preempts plaintiffs' state law claims; (2) further consideration of the complaint could conflict with regulation and enforcement by the United States Food and Drug Administration (FDA) or California's Department of Health Services (DHS), so the action should be dismissed under the primary jurisdiction doctrine; and (3) plaintiffs failed to allege affirmative representation as required in order to state a cause of action under several provisions of the CLRA. Defendants also moved to strike portions of the complaint.

The trial court sustained the demurrer as to each count, with leave to amend. The court held that section 337(a) preempts plaintiffs' state law claims, that the dispute should be referred to the FDA or the DHS under the primary jurisdiction doctrine, and that plaintiffs failed to state a claim for violation of the CLRA because they failed to allege the necessary affirmative representation. Plaintiffs elected not to amend their complaint and instead challenged on appeal the sustaining of the demurrer.

The Court of Appeal affirmed the trial court's finding of preemption, holding that section 337(a) precludes private enforcement of the FDCA, that plaintiffs' state law claims are predicated on a violation of the FDCA, and, therefore, that section 337(a) impliedly preempts plaintiffs' state law claims.7 In light of its holding, the Court of Appeal did not reach or discuss the other grounds asserted by defendants in support of their demurrer. We granted plaintiffs' petition for review.

B. Relevant Federal and State Laws
1. The FDCA Requires Disclosure of the Use of Color Additives

The FDCA prohibits the misbranding of any food. (§ 331(b).) A food "shall be deemed to be misbranded" under the FDCA if "its labeling is false or misleading in any particular ...." (§ 343(a).) More important to this case, a food is also deemed misbranded if "[i]t bears or contains any ... artificial coloring ... unless it bears labeling stating that fact ...." (§ 34300.)

FDA regulations permit the use of the chemical substances astaxanthin and canthaxanthin in "the feed of salmonid fish" as color additives "to enhance the pink to orange-red color of the flesh of salmonid fish." (21 C.F.R. §§ 73.35(c) [astaxanthin], 73.75(c)(3) [canthaxanthin] (2007).) If used, however, the chemicals' presence must be declared as prescribed by the FDA (id., §§ 73.35(d)(3), 73.75(d)(4)). Use of a color additive must be declared through the use of the phrases "`Artificial Color,' `Artificial Color Added,' or `Color Added' (or by an equally informative term that makes clear that a color additive has been used in the food)." (Id., § 101.2200(2) (2007).) Alternatively, disclosing the actual color additive used satisfies FDA regulations. (Ibid.) The disclosure that a color additive has been used "shall be placed on the food or on its container or wrapper, or on any two or all three of these, as may be necessary to render such statement likely to be read by the ordinary person under customary conditions of purchase and use of such food." (Id., § 101.22(c).)

2. The FDCA Permits States to Establish Identical Requirements

Congress amended the FDCA with the Nutrition Labeling and Education Act of 1990 (NLEA). (Pub.L. No. 101-535 (Nov. 8, 1990) 104 Stat. 2353.) The purpose of the NLEA was to create uniform national standards regarding the labeling ,of food and to prevent states from adopting inconsistent requirements with respect to the labeling of nutrients. (Remarks of Rep. Waxman, 136 Cong. Rec. 5840 (daily ed. July 30, 1990) [debate on H.R. No. 3562, 101st Cong., 2d Sess.].) To that end, the NLEA included an explicit preemption provision in the form of section 343-1(a) (Pub.L. No. 101-535, § 6 (Nov. 8, 1990) 104 Stat. 2362-2364), which provides that "no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—[¶] ... [¶] (3) any requirement for the labeling of food of the type required by section ... 343(k) of this title that is not identical to the requirement of such section ...." (§ 343-l(a), italics added.)8

Although section 343-1 speaks in terms of what states may not do, by negative implication, section 343-1 also expresses what states may do, i.e., states may establish their own requirements pertaining to the labeling of artificially...

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