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U.S. Supreme Court rejects appeal to stop farmed-salmon labelling lawsuit

A bid by some of the largest grocery chains in the United States, to stop a class action lawsuit alleging they failed to warn consumers of the presence of artificial coloring in farm-raised salmon, violating State Law, has failed

January 13, 2009

U.S. Supreme Court rejects appeal to stop farmed-salmon labelling lawsuit

A bid by some of the largest grocery chains in the United States, to stop a class action lawsuit alleging they failed to warn consumers of the presence of artificial coloring (astaxanthin and canthaxanthin) in farm-raised salmon, violating the state Sherman Food, Drug, and Cosmetic Law, has failed. The companies argued unsuccessfully that only government regulators, and not customers, can enforce federal and state labeling laws.

In the case of Albertson’s, Inc. v. Kanter (No. 07-1327) filed in California state court, the plaintiffs had argued that California law prohibited the misbranding of food, which in turn gave rise to state law claims of unfair competition, deceptive trade practices, false advertising, and negligent misrepresentation. In response, defendant grocers argued - and the lower courts agreed - that because the Sherman Law would frustrate the purpose and intent of the Federal Food, Drug, and Cosmetic Act’s (FFDCA) own food labeling requirements, the state law claims were implicidly preempted.

On February 11, 2008 the California Supreme Court issued a unanimous decision reversing the lower court decisions. The California Supreme Court concluded that the FFDCA did not preempt the state action because the plaintiffs were not seeking to enforce or restrain violation of the FFDCA.  Rather, plaintiffs' claims for deceptive marketing of food products are based on state laws establishing independent state disclosure requirements that are (as they must be under the Nutrition Labeling and Education Act (NLEA)) identical to the disclosure requirements imposed by the FFDCA.  The plaintiffs may pursue private rights of action to enforce such state laws, even though they are identical to the FFDCA and even though those rights and remedies sought may not be enforceable under the FFDCA.

The California Supreme Court had relied on recent U.S. Supreme Court decisions that held state laws were not preempted where plaintiffs were seeking remedies under state laws for violations of state laws that duplicated substantive federal requirements. 

In April 2008, the defendant grocery stores petitioned the U.S. Supreme Court for review.  On October 6, 2008, the U.S. Supreme Court invited the Solicitor General of the U.S. to file a brief expressing the views of the federal government.  Such an invitation typically signals a willingness by the Court to entertain the case.  In an amicus brief filed in December, the Solicitor General and FDA argued against preemption.  It appears that the brief helped persuade the U.S. Supreme Court not to review the California Supreme Court decision. 

The Solicitor General and FDA argued that the language of FFDCA § 403A “strongly suggests” that States are free to adopt requirements identical to federal requirements, and notes that NLEA section 6(c)(1) explicitly limits the preemptive effect of the NLEA.  The government further argued that nothing in § 403A of the FFDCA suggests Congressional intent to “limit the States’ authority to prescribe the remedies for violations of the state requirements permitted by [§ 403A].” 

The government also argued that the California action is not preempted by FFDCA § 310, which provides that proceedings for enforcement, or to restrain violations, of the FFDCA must be by and in the name of the U.S. (with the exception of certain actions brought by States in conformance with certain procedural requirements).  “Actions to enforce state laws that impose requirements identical to those under the FFDCA are not actions to enforce the FFDCA itself.”  This section does not preempt state law claims that “parallel” FFDCA requirements. 

The government stated that even when state-law claims are predicated on violations of the FFDCA, they remain state-law claims that are not preempted by federal law.

According to Bloomberg, the supermarkets said the California court ruling is “an open invitation to private plaintiffs nationwide to bring class actions” and will “wreck Congress’s exclusive government enforcement scheme and all its built-in advantages.”

The central question was whether the U.S. Food, Drug and Cosmetic Act, which governs food labeling at the federal level, bars private efforts to enforce similar state laws. The California Supreme Court concluded that Congress made a “conscious choice” to permit those private suits.

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