Earlier this month, this blog analyzed the preemption provisions of the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA), which together regulate the labeling of meat and poultry products. We explained that trial courts in California and elsewhere routinely dismiss false advertising claims challenging statements on meat and poultry labels based on the statutes’ preemption provisions, which prohibit states from imposing requirements different from or in addition to federal law. Courts have specifically focused on the FMIA and PPIA’s pre-approval requirements in concluding that such challenges are preempted.
The Ninth Circuit recently affirmed this trend in Webb. v. Trader Joe’s Company, No. 19-56389 (9th Cir. June 4, 2021), confronting for the first time a challenge by a private plaintiff to poultry labeling claims. In Webb, a consumer objected to label statements on Trader Joe’s All Natural Boneless Chicken Breasts, All Natural Chicken Thighs, and All Natural Chicken Wings products, which said the products contained “[u]p to 5% retained water.” (By way of background, chickens are placed in chill tanks after being slaughtered, and “retained water” refers to the amount of water that is absorbed during this chilling process.[1]) Pursuant to 9 C.F.R. § 441.10, raw poultry can only be sold if the amount of retained water is “an unavoidable consequence of the process used to meet applicable food safety requirements” and, if so, the product label must state the maximum percentage of retained water.
Plaintiff Webb alleged that she purchased the products at Trader Joe’s stores and then sent the products to a food testing laboratory, which concluded that the products in fact contained an average of 9% retained water (rather than the 5% claimed). Based on the third-party test, Webb alleged that the product labels were false and misleading in violation of California consumer protection laws.
Trader Joe’s moved for judgment on the pleadings under Rule 12(c), arguing that Webb’s claims were preempted by the PPIA. The district court agreed and dismissed the case, and the Ninth Circuit unanimously affirmed. The panel began its analysis by explaining that poultry products are closely regulated by the Food Safety and Inspection Service (FSIS), an agency within the Department of Agriculture. As part of its regulation, FSIS monitors the retained water data collection process, and companies like Trader Joe’s are required to “maintain on file and make available to FSIS its written data-collection protocol” for how the company arrived at the claimed retained water percentage. FSIS is responsible for ensuring that data-collection protocols are “scientifically valid, that the data collected under them will reflect water-retention amounts that are unavoidable, and that the data support water-retention statements on product labeling.”[2] And FSIS can object to or require changes to a data-collection protocol if it identifies deficiencies.
With that regulatory framework in mind, the Ninth Circuit had no trouble concluding that Webb’s state law claims were preempted by federal law. Because Webb’s claims were premised on her own water-retention testing—which she could not confirm had parameters identical to Trader Joe’s’ water retention protocol—Webb necessarily sought to impose a data collection protocol different than the one Trader Joe’s had developed and made available to FSIS for review. As a consequence, Webb’s claims were preempted by the PPIA and could not proceed. Notably, the Court rejected Webb’s argument that preemption should not apply because the PPIA merely requires that a manufacturer make its protocol “available” to FSIS and does not require FSIS to actively review and approve the protocol. The Court explained that even FSIS’s inaction—i.e., “FSIS’s decision not to object or otherwise require changes” to the protocol—“operates as federal approval of that protocol,” and thus is sufficient to trigger preemption.
The Ninth Circuit also found Webb’s claims preempted for a second reason. In addition to the retained water statements, the labels also stated that the chicken products contained “no antibiotics ever,” “no added hormones,” and were “all vegetarian fed.” Such “health claims,” “ingredient and processing method claims,” and “claims regarding the raising of animals” are classified under federal regulations as “special statements,” which must be submitted to FSIS for preapproval.[3] And when a poultry product label contains one or more special statements, FSIS reviews and preapproves the entire product label, not just the special statements. Thus, the Trader Joe’s labels at issue—including the retained water statements, which are not “special statements”—had actually been preapproved by FSIS. Webb’s claims were also preempted because she improperly sought to “require[] changes to poultry labels that were approved by FSIS.”
This clear declaration by the Ninth Circuit reaffirms the powerful effect of preemption in defending against labeling challenges to poultry products. The defense is most readily applied when the label at issue was actually reviewed and preapproved by a federal agency. But Webb makes clear that preapproval is not necessarily required to invoke preemption. Rather, it may be enough that the manufacturer developed protocols consistent with the regulatory scheme, the reviewing agency had the right (even if not exercised) to review the protocol, and the agency permitted sale of the products without objection.
Moreover, the logic of the decision is not limited to meat and poultry products, and should apply with equal force whenever a plaintiff premises false advertising claims on private test results that allegedly differ from results the manufacturer obtained through procedures required by the applicable regulating agency. For example, the Food, Drug and Cosmetic Act (FDCA) and its implementing regulations require labeling claims about ingredient quantities in over-the-counter drugs and supplements to be supported by rigorous, specifically prescribed methodologies. Following Webb, false advertising claims based on a consumer’s private testing of ingredient amounts in OTC drugs and supplements should similarly be deemed preempted—at least when the plaintiff cannot show that she used a testing protocol identical to that required by law.
[1] USDA, What is “Retained Water” in Poultry?, https://ask.usda.gov/s/article/What-is-retained-water-in-poultry
[2] Retained Water in Raw Meat and Poultry Products; Poultry Chilling Requirements, 66 Fed. Reg. 1750, 1756 (Jan. 9, 2001).
[3] 9 C.F.R. § 412.1.
