Lockwood v. Conagra Foods, Inc.

• Decision Date: 03 February 2009
• Docket Number: No. C 08-04151 CRB.,C 08-04151 CRB.
• Citation: 597 F.Supp.2d 1028
• Parties: Margot LOCKWOOD, Individually and on behalf of all others similarly situated, Plaintiffs, v. CONAGRA FOODS, INC., Defendant.
• Court: U.S. District Court — Northern District of California

597 F.Supp.2d 1028

Margot LOCKWOOD, Individually and on behalf of all others similarly situated, Plaintiffs, v. CONAGRA FOODS, INC., Defendant.

No. C 08-04151 CRB.

United States District Court, N.D. California.

February 3, 2009.

Christopher Kevin Gilbert, The Gilbert Law Firm, Houston, TX, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, for Plaintiffs.

Michael Louis Fazio, Quinn Emanuel Urquhart Oliver & Hedges, LLP, San Francisco, CA, for Defendant.

MEMORANDUM AND ORDER

CHARLES R. BREYER, District Judge.

Plaintiffs filed this putative class action under California's Unfair Competition Law, Business and Professions Code section 17200. They allege that defendant engages in misleading conduct by advertising its "Healthy Choice" pasta sauce as "all natural" when in fact it includes "high fructose corn syrup." Defendant moves to dismiss on the ground that plaintiffs' claims are expressly preempted by the Nutrition Labeling and Education Act and impliedly preempted by comprehensive Food and Drug Administration ("FDA") regulations under the Federal Food and Drug Cosmetic Act. In the alternative, defendant argues that the Court should defer to the FDA under the "primary jurisdiction" doctrine and should strike the class allegations because plaintiffs cannot prove reliance on a class-wide basis. After carefully considering the parties' papers, including the supplemental briefs submitted after oral argument, defendant's motion is DENIED.

THE FEDERAL REGULATORY SCHEME

The Federal Food, Drug, and Cosmetic Act ("FDCA") gives the FDA the responsibility to protect the public health by ensuring that "foods are safe, wholesome, sanitary, and properly labeled," 21 U.S.C. § 393(b)(2)(A), and the FDA has promulgated regulations pursuant to this authority. See e.g., 21 C.F.R. § 101.1 et seq.. Among other labeling requirements, the FDCA mandates the identification of artificial flavors, 21 U.S.C. § 343(k), and the identification of "imitation" products or ingredients, 21 U.S.C. § 343(c). There is no private right of action under the FDCA, Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 810, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986); instead, the FDA enforces the FDCA and its regulations through administrative proceedings. See, e.g., 21 C.F.R. § 7.40.

Congress amended the FDCA by enacting the Nutrition Labeling and Education Act of 1990 (the "NLEA"). The purpose of the NLEA was to "`clarify and to strengthen [FDA's] authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about the nutrients in foods.'" National Council for Improved Health v. Shalala, 122 F.3d 878, 880 (10th Cir.1997) (quoting H.R.Rep. No. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337). For example, the NLEA requires food and beverage producers to identify serving size, the number of servings per container, the total number of calories, and the amount of certain nutrients such as fat, cholesterol, and sodium. 21 U.S.C. § 343(q)(1)(A)-(D).

The NLEA further amended the FDCA by adding a preemption provision. This provision creates express preemption for state laws that address certain subjects covered by the FDCA, including nutritional labeling requirements added by the NLEA. See 21 U.S.C. § 343-1(a).

DISCUSSION

I. Preemption

"Federal preemption can be either express or implied." Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 982 (9th Cir.2008). Defendant argues that plaintiffs' claims are expressly preempted under the NLEA or, in the alternative, are impliedly preempted by the FDCA because Congress intended to occupy the field of food and beverage labeling. Defendant also argues that implied preemption applies because California law conflicts with federal law.

The Court's "inquiry into the scope of a statute's pre-emptive effect is guided by the rule that [t]he purpose of Congress is the ultimate touchstone in every pre-emption case." Altria v. Good, ___ U.S. ___, 129 S.Ct. 538, 543, ___ L.Ed.2d ___ (2008) (internal quotation marks and citations omitted). Courts begin their analysis "`with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). "That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States." Id. (internal quotation marks and citation omitted).

Defendant argues that food labeling is not a field traditionally occupied by the states. Even if defendant is correct, the assumption against preemption still applies, just not with the same force. In any event, the Court concludes that defendant has not proved congressional intent to preempt the claims raised here, even without an assumption against preemption.

A. Plaintiffs' claims are not expressly preempted.

Defendant first asserts that plaintiffs' claims are preempted by the express preemption provisions added by the NLEA. Section 343-1(a) 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 . . . ." 21 U.S.C. § 343-1(a)(3). Section 343(k), in turn, provides that food is misbranded "[i]f it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears label stating that fact . . . ." 21 U.S.C. § 343(k). Thus, states may impose labeling requirements for artificial favors, colors or preservatives only if such requirements are identical to those imposed by the FDCA; any differences are preempted.

This provision does not apply to plaintiffs' complaint as currently pled. Plaintiffs do not allege that defendant's pasta sauce contains artificial flavoring, coloring or a chemical preservative; rather, they allege that the "high fructose corn syrup" is not produced by a natural process and therefore the pasta sauce is not "all natural." On defendant's motion to dismiss the Court cannot conclude that plaintiffs' claims are preempted by section 343-1(a)(3).

The Court also cannot conclude that plaintiffs' claims as currently pled are expressly preempted by section 343-1(a)(2). That provision prohibits a state from establishing any requirement for the labeling of food that is required by 21 U.S.C. section 343(c), unless such requirement is identical to the federal requirement. Section 343(c) in turn, deems a food misbranded if it is an imitation of another food but does not identify itself as an imitation. Plaintiffs are not alleging that the pasta sauce is an imitation of some other food; rather, they allege that it is not "all natural" because it is made with high fructose corn syrup.

B. Plaintiffs' claims are not impliedly preempted.

1. Field preemption

Next, defendant argues that even if not expressly preempted, plaintiffs' claims are impliedly preempted because Congress intended the federal government to occupy the field of food and beverage labeling. This "intent may be inferred from a `scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress `touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on that subject.'" English v. General Electric Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (citation omitted). Defendant urges the Court to find field preemption based on the FDA's enactment of a panoply of regulations governing the labeling of food and beverages. The Court is not persuaded.

a. The NLEA's preemption provisions suggest Congress did not intend to occupy the field of food and beverage labeling.

Defendant's assertion that Congress intended to occupy the field of food and beverage labeling is belied by the NLEA. That Act amended the FDCA to include an express preemption provision that allows state regulations that are identical to federal law. 21 U.S.C. § 343-1(a). Thus, the FDCA as amended by the NLEA contemplates state regulation and enforcement along with federal regulation. Moreover, "an express definition of the pre-emptive reach of a statute `implies' — i.e., supports a reasonable inference — that Congress did not intend to pre-empt other matters . . . ." Freightliner Corp. v. Myrick, 514 U.S. 280, 288, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995).

Here, the intent not to impliedly preempt does not need to be inferred because the preemption provisions added to the FDCA by the NLEA include an express savings clause that disavows any implied preemption: "The [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. § 343-1(a)]." Pub.L. No. 101-535, § 6(c)(1) (21 U.S.C. § 343-1 note). Thus, Congress has explicitly stated that it does not intend to occupy the field of food and beverage nutritional labeling; instead, it permits states to regulate subject matters covered by the NLEA and its regulations provided that such state laws do not fall within the FDCA's express preemption provisions. See In re Farm Raised Salmon Cases, 42 Cal.4th 1077, 1091, 72 Cal.Rptr.3d 112, 175 P.3d 1170 (2008) (holding that with section 6(c)(1) "Congress made clear that the preemptive scope of section 343-1 was to sweep no further than the plain language of the statute itself.").

Defendant responds that — although it argues (unsuccessfully) that plaintiffs' claims are expressly preempted by the provisions added by the NLEA — its field preemption argument is based solely on the FDCA "misbranding"...