A recent case from the Central District of California brings good news to defendants making preemption arguments under the Nutrition Labeling and Education Act (NLEA) in private surgeon general cases. Cardona v. Target Corporation, et al., No. 2:12-cv-01148-GHK-SP, Docket Entry 48 (C.D. Cal. Mar. 20, 2013). While defendants have had mixed success with preemption, especially in California, this decision leaves no question about whether federal requirements for the use of a food’s “common or usual name” on labels displace separate state standards. In Cardona v. Target, plaintiff Bertha Cardona claimed that the “Pure Honey” she purchased from Target included no pollen, and was therefore not truly “honey.” Plaintiff admittedly based her complaint on a biased November 2011 Food Safey News article claiming that honey without pollen isn’t honey at all. Seeking to impose her own standards for honey, Cardona filed a putative class action complaint alleging 11 causes of action, including claims under California’s Unfair Competition Law and Consumers Legal Remedies Act.
Cardona claimed that California Department of Food and Agriculture code prohibited the removal of pollen from honey, and that the sale in California of honey without pollen as “honey” was misleading and deceptive. In dismissing Cardona’s case with prejudice, the court examined the provisions of the NLEA and its regulations in careful detail. Defendants Target and Honeytree (represented by MoFo litigators Dave McDowell and Purvi Patel) argued that there was no reasonable dispute whether their product was honey, and that any requirement to call honey something other than honey on the label would render the food misbranded under federal law. Defendants further argued that where there is no federal standard of identity, as is the case for honey, under the NLEA honey must be labeled with its “common or usual name” (which is “honey”). See NLEA Sections 343-1(a)(3) and 343(i)(1). Thus, the California requirements cited by Cardona were preempted by Section 343-1(a) of the NLEA, which prohibits any state standard that is not “identical” to the federal requirement.
The court agreed. Citing the legislative history and the NLEA’s goal o to “further uniformity to reduce consumer confusion,” the court concluded that the federal common-name labeling requirement applies in this case, and that honey must be called honey, irrespective of pollen content. The court rejected Cardona’s argument that California could issue separate standards of identity that govern labeling where the FDA had not established a federal standard of identity. In its final blow to Cardona’s case, the court rejected the argument that use of the word “pure” in describing the honey was independently actionable, finding that Cardona’s entire case was based on the same theory — namely, that the honey she allegedly bought was neither pure nor truly “honey” because it contained no pollen. On that basis, and because Cardona could not plausibly allege the addition of any ingredient that would render the use of the term “pure” misleading, the court concluded that the word “pure” did not provide a separate basis for Cardona’s claims.