Originally published in Washington Legal Foundation on August 3, 2012.
Class action lawyers looking for a shakedown have gone on a food binge. They have focused on the food industry and the ever-obliging federal court sitting in the Northern District of California. Scores of “misbranding” cases have been filed there in the past few years, so many that one commentator recently noted that the court has become for false labeling litigants what the Eastern District of Texas has been to patent trolls. The U.S. Court of Appeals for the Ninth Circuit’s recent decision in Pom Wonderful, however, may cause them a touch of indigestion.
FDA Preemption. At first glance, the food industry seems an unlikely target for a litigation makeover. Food manufacturers should be able to rely on express preemption.
First, Congress has established through the Federal Food, Drug and Cosmetic Act (“FDCA”) a comprehensive federal scheme of food regulation to ensure that food is safe and is labeled in a manner that does not mislead consumers (21 U.S.C. §§ 341-350f). In fact, Congress expressly preempted any state law that requires food manufacturers to include nutritional information on their packaging that is “not identical” to federal requirements (21 U.S.C. § 343-1(a)). The phrase “not identical” means information that is different from, or in addition to, federal requirements (21 C.F.R. § 100.1(c)(4)(i)(ii)).
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