Mills v. Giant of Maryland, LLC

• Decision Date: 02 August 2006
• Docket Number: Civil Action No. 05-02211 (HHK).
• Citation: 441 F.Supp.2d 104
• Parties: Milton MILLS, M.D., et al., Plaintiffs, v. GIANT OF MARYLAND, LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 104

441 F.Supp.2d 104

Milton MILLS, M.D., et al., Plaintiffs, v. GIANT OF MARYLAND, LLC, et al., Defendants.

Civil Action No. 05-02211 (HHK).

United States District Court, District of Columbia.

August 2, 2006.

Bernard J. Dimuro, Dimuro, Ginsberg & Mook, Alexandria, VA, Daniel Kinburn, Physicians Committee for Responsible Medicine, Washington, DC, for Plaintiffs.

Steven J. Rosenbaum, Nadia Ibrahim Shihata, Covington & Burling, Washington, DC, Geoffrey S. Gavett, Gavett & Datt, PC, Rockville, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

KENNEDY, District Judge.

Plaintiffs—Milton Mills, Rashid Gholson, Hua-Wei Cherng, Norma Humphries, Lynette Garner, Darrell Bransome, Paul Miller, Glenda Costner, Sybil Harold, and Elizabeth Russell—bring this putative class action on behalf of "all those lactose intolerant persons who, unaware of their condition, have purchased milk in Washington, D.C., and suffered the consequences of their condition." Compl. ¶ 29. Plaintiffs seek injunctive relief and an award of damages as a result of what they allege was the defendants'—Giant of Maryland, LLC; Safeway, Inc.; Horizon Organic; Dean Foods Co.; Nestle Holdings, Inc.; Farmland Dairies, LLC; Shenandoah's Pride, LLC; Stonyfleld Farm, Inc.; and Cloverland Farms Dairy, Inc.—"negligent failure to warn causing personal injury." Id. at 15. Plaintiffs additionally assert a products liability claim premised on defendants' sale of milk without proper warning labels. Before the court are defendants' motions to dismiss.¹ Upon consideration of the motions, the oppositions thereto, the record of this case, and the argument of counsel at a hearing, the court concludes that plaintiffs' claims must be dismissed.

I. BACKGROUND

Plaintiffs seek to focus attention on what is purported to be a widespread, but largely unrecognized, health problem—lactose intolerance. This condition results from the absence of lactase enzymes that facilitate the digestion of lactose, the sugar found in milk. Following the consumption of milk and milk-products, those who suffer from lactose intolerance exhibit symptoms including "flatulence, bloating, cramps, and diarrhea." Compl. ¶ 2.

According to plaintiffs, while nearly all infants and young children are able to digest lactose, lactose intolerance is pervasive among adults. Plaintiffs assert that "75% of the world's population, including 90% of Asian Americans, 90% of Native Americans, 60% to 80% of African Americans, 50% to 80% of Latinos, and 6% to 22% of Caucasians are lactose intolerant." Id. ¶ 3.

Notwithstanding the vast number of people allegedly afflicted with lactose intolerance, plaintiffs insist that the extent to which people suffer from this condition has been minimized by the milk industry and "the government's marketing efforts." Id. ¶ 6. Plaintiffs maintain that defendants, with the aid of the government, have propagated the myth that milk is a necessary part of a healthy diet while simultaneously stifling information about the incidence of lactose intolerance.

Because of the limited dissemination of information about the scope of lactose intolerance, plaintiffs contend that many individuals remain unaware that they suffer from this illness. Plaintiffs, for example, are all individuals who, "unaware of their lactose intolerance, have unwittingly been subjected to gastrointestinal pain and discomfort by purchasing and consuming milk sold by defendants." Id. ¶ 8.

In order to address the public's ignorance of what plaintiffs allege is a common malady, plaintiffs request that defendants be enjoined from marketing their products in the District of Columbia until they adopt a warning label that alerts consumers about the possible risks of lactose intolerance.² In addition, the named plaintiffs seek money damages for the injuries they have suffered as a result of milk consumption.

Defendants now move to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).³

II. ANALYSIS

Defendants identify a number of bases for the dismissal of plaintiffs' complaint; foremost among them that plaintiffs' claims are preempted by federal legislation. Defendants rely upon two theories in support of their argument that the common law claims pursued by plaintiffs are preempted: explicit preemption—present when Congress's intent to preempt state law is "explicitly stated in the statute's language," Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), and implied conflicts preemption—applicable "where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (quotations and citations omitted).

A. Preemption

The statutory basis for defendants' explicit preemption argument is found in Section 6 of the National Labeling & Education Act of 1990 ("NDEA"), 104 Stat. 2353, which added Section 403A to the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 343-1(a). Section 403A reads in pertinent part:

Except as provided in subsection (b), 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— (1) any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g) of this title....

21 U.S.C. § 343-1(a)(1). Because, pursuant to 21 C.F.R. § 131, milk and cream are subject to a "standard of identity,"⁴ defendants contend that any common law claims that would have the effect of mandating particular cautionary statements on milk labels would necessarily run afoul of Section 403A.

In response, plaintiffs submit that Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005), establishes that common law claims like those raised in plaintiffs' complaint are not, in fact, preempted by the NDEA or FDCA. Bates, however, did not address the NDEA or FDCA. Rather, Bates examined whether the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.A. § 136(v)(b), preempted the petitioners' claims for breach of express warranty, fraud, violation of the Texas Deceptive Trade Practices-Consumer Protection Act, strict liability (including defective design and defective manufacture), and negligent testing. Id. at 443 n. 15, 125 S.Ct. 1788 n. 15. In Bates, petitioners contended, inter alia, that the respondent, a herbicide manufacture, had a duty to warn consumers that the herbicide in question should not be applied to soils with a pH-level of 7.2 or greater since such application could result in harm to crops. Respondent argued that such claims were unsustainable given FIFRA's preemption clause, which in pertinent part states: "Such state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." Id. at 439, 125 S.Ct. 1788 (citing 7 U.S.C. § 136(v)(b)).

In a decision that was moored tightly to the specific preemption clause at issue, the Court held that a number of petitioners' claims—defective design, defective manufacture, negligent testing, and breach of express warranty—did not constitute requirements for "labeling or packaging" and consequently, were not preempted. Id. at 444, 125 S.Ct. 1788. The Court rejected the proposition that adverse determinations on these claims might induce respondent to supplement its packaging with a warning and, consequently, that the claims fell within the ambit of FIFRA's preemption provision. By comparison, the Court held that petitioners' fraud and negligent-failure-to-warn claims did regulate labeling or packaging, and therefore proceeded to the second step of the analysis: determining whether the duties imposed by these common law claims expanded those established under FIFRA. Id. at 446, 125 S.Ct. 1788.

Because there was no lower court finding that the duties imposed by the common law were "in addition to or different from" those imposed by FIFRA—specifically, FIFRA's requirement that "labeling or packing" not contain false or misleading statements, or inadequate instructions or warnings—the Court concluded that a finding of preemption was impossible. Id. at 447, 125 S.Ct. 1788. The Court remanded the case in order to resolve this issue, noting, however, that a finding of inconsistent duties would in turn require preemption. Id. at 453, 125 S.Ct. 1788.

Nothing in Bates categorically defeats defendants' argument that plaintiffs' claims are precluded by FDCA's preemption clause. Rather, Bates merely underscores the need to pay close attention to the scope of the FDCA's preemption clause and assists the court in framing the questions to be addressed: first, whether the duty imposed by the relief which plaintiffs seek is "a requirement for a food which is the subject of a standard of identity," and second, whether this duty "is identical" to the labeling requirements of the FDCA.⁵ See id. at 444, 125 S.Ct. 1788. The court answers both questions in the affirmative.

With respect to the initial question, there is little doubt that the common law duties plaintiffs seek to impose constitute "requirements for a food which is the subject of a standard identity." The scope of FDCA's preemption clause is much broader than FIFRA's, prohibiting "any" requirements as opposed to merely requirements "for labeling or packing." Accordingly, the concern that plaintiffs' common law claims lie beyond the reach of FDCA's preemption clause are not as acute as they were in Bates. In addition, there is no dispute that milk is subject to a standard of identity, as such, these obligations are "requirements for...