Cohen v. ConAgra- Poultry False Advertising Claims Survive Despite Federally Preempted Product Mislabeling Claim

Bilzin Sumberg

Bilzin Sumberg

In October of this year, the Ninth Circuit Court of Appeals analyzed the issue of federal preemption in the context of poultry product labeling. The plaintiff in Cohen v. ConAgra Brands, Inc.,1 brought a putative class action claiming that ConAgra’s “natural” and “preservative-free” messaging on its frozen chicken product labels and website advertising was false and misleading under California state law.

The plaintiff first filed his action in April 2020 in the Central District of California, alleging that ConAgra used synthetic ingredients in its products, thereby making both its product labeling and website advertising false or misleading under California law.2 The district court dismissed the case, holding that the plaintiff’s claims were preempted by the Poultry Products Inspection Act (“PPIA”), which bars plaintiffs from using state law claims to challenge the Department of Agriculture’s (“DOA”) application of mislabeling standards for poultry products.3 Specifically, the court held that the DOA’s Food Safety and Inspection Service (“FSIS”) had approved the statements used on ConAgra’s poultry labels and advertising.

With respect to the ConAgra label at issue, the Ninth Circuit agreed that “[i]f the evidence shows that ConAgra's label was approved by FSIS, then [Plaintiff’s] claims are preempted,” but remanded the case to the district court, noting that there was no evidence in the record regarding whether the ConAgra label itself was actually reviewed and approved by FSIS.”4

The Court further held that the plaintiff’s website advertising claim—which was predicated on different language and representations than those contained on the product label—could proceed. The Court observed that the FSIS does not review website representations, and given the differing content, any review by the FSIS of the ConAgra label could not serve as a basis for preemption. ConAgra should impact online advertising strategies for food products moving forward. The case signals that notwithstanding an otherwise federally compliant product label, a materially different advertisement could serve as a sufficient basis to sustain a state law false advertising claim.

While several other courts continue to reject typical claims of misleading labels in favor of dismissing cases wholesale when compliant labels are at issue,5 ConAgra is in accord with the Northern District of California’s prior decision in the Sanderson Farms case6, holding that challenges to internet and television advertisements for Sanderson Farms chicken being “100% Natural” were not preempted by the PPIA and the Federal Meat Inspection Act (“FMIA”). The court determined that the internet and tv ads—that contained various images and statements such as this “means there’s only chicken in our chicken”—were materially different and went beyond the “100% Natural” claim on the USDA-approved label.7

We will provide updates as ConAgra proceeds on remand.

1 Robert Cohen v. ConAgra Brands, Inc., No. 20-55969, ECF No. 60-1 at 6 (9th Cir. Oct. 26, 2021) (Opinion and Order).
2 Specifically, the plaintiff alleged that ConAgra’s labels on its frozen chicken nuggets and fried chicken improperly claimed that the products were, “Made with 100% Natural White Meat Chicken”; had “No Preservatives”; “No Artificial Colors”; “No Added Hormones”; “No Artificial Flavors”; and “0g Trans Fat per Serving.” Similarly, on its website, ConAgra advertises that “[the product is] made with 100% natural white-meat chicken, and without preservatives, artificial flavors, or artificial colors.” Id.
3 21 U.S.C. § 467e.
4 Id. at 3.
5 See, e.g., Webb v. Trader Joe's Co., 999 F.3d 1196 (9th Cir. 2021) (plaintiff’s state law claim that Trader Joe’s chicken falsely labeled its chicken products as containing up to “5% retained water” was preempted); Phelps v. Hormel Foods Corp., 244 F. Supp. 3d 1312 (S.D. Fla. 2017) (holding plaintiff’s challenge of “100% Natural” and “No Preservatives” label on defendant’s Natural Choice brand deli-style meat products was preempted).
6 Organic Consumers Association v. Sanderson Farms, Inc., 284 F. Supp. 3d 1005 (N.D. Cal. 2018).
7 Id. at 1009.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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