For more than three decades, food labeling class actions have operated at the intersection of federal regulatory authority and state consumer protection law. At the junction of that intersection lies the Nutrition Labeling and Education Act of 1990 (“NLEA”), Congress’s regulatory scheme to achieve national uniformity in food labeling while preserving a limited role for states. Uniformity is essential to food’s mass-production because it engenders economies of scale, promotes consumer apples-to-apples label comparisons, and reduces food costs to the public. As it relates to enforcement of the NLEA, recent decisions from the Federal Ninth Circuit -- -- Davidson v. Sprout Foods, Inc., 106 F.4th 842 (9th Cir. 2024), cert. denied Apr. 21, 2025, and Bubak v. Golo, 2025 WL 2860044 (9th Cir. Oct. 9, 2025), fracture Congress’s national enforcement regime and replace it with a judicial patchwork varying from jurisdiction to jurisdiction.
For business attorneys advising food companies, these decisions raise practical and strategic concerns.
I. The Preemption and Private Right of Action Framework
The FDCA contains no private right of action. Enforcement authority lies exclusively with the federal government. The NLEA amends the FDCA to include an express preemption provision, 21 U.S.C. § 343-1(a), which prohibits states from establishing labeling requirements “not identical to” specified federal requirements.
Colella v. Atkins Nutritionals, Inc., 348 F. Supp. 3d 120 (E.D.N.Y. 2018) articulated the now-familiar distinction between express preemption under the NLEA and impermissible private enforcement of the Food, Drug and Cosmetic Act (“FDCA”):
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Express preemption: State law claims are barred where they would impose labeling requirements not identical to federal law.
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Parallel claims: State law causes of action that impose requirements identical to federal standards are not preempted.
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Implied preemption under § 337(a): State law claims that amount to private enforcement of the FDCA -- -- i.e., that exist solely by virtue of federal law -- -- are barred.
For the implied preemption framework, the key analytical question is whether plaintiff’s theory genuinely arises under independent state law duties (e.g., traditional false advertising standards), or whether it attempts to enforce federal labeling requirements indirectly -- -- domain exclusively reserved to FDA.
The NLEA was enacted precisely to prevent a patchwork of state labeling standards. Courts have noted Congress sought national uniformity in the highly regulated area of food labeling. Thus, preemption is not merely technical; it is structural and an integral part of federalism.
II. Davidson v. Sprout Foods: The Ninth Circuit Redefines NLEA Implied Preemption Doctrine
In Davidson v. Sprout Foods, the Ninth Circuit significantly narrowed implied preemption under § 337(a) and expanded the allowed state law labeling claims premised on FDCA violations.
Here, the plaintiff alleged defendant’s baby food pouches made front-label nutrient content claims prohibited by FDA regulations. The plaintiff claimed that the labels therefore violated California’s Sherman Law, which incorporates the NLEA food labeling regulations, and therefore also violated California consumer protection law. The defendant argued plaintiff’s claims were impliedly preempted because they amounted to private enforcement of the FDCA.
The Ninth Circuit rejected the implied preemption argument and held that state law claims predicated on conduct also violating the FDCA are not barred, even if the state law was not “independent” of the federal law and functionally seeks to enforce federal standards.
The practical consequence is significant. Plaintiffs in the Ninth Circuit can now enforce federal FDCA standards under state consumer protection statutes with relative ease. So long as the federal standards are incorporated in state standards, as in California’s Sherman Law, the absence of a federal private right of action does not bar the claim.
III. Bubak v. Golo: Limitation or Amplification of Davidson?
In Bubak v. Golo, 2025 WL 2860044, the Plaintiff similarly alleged that a food label violated the FDCA, and thus violated California’s Sherman Act and consumer protection law. Nonetheless, the Ninth Circuit held the claim was impliedly preempted because it “necessarily requires litigating ‘the alleged underlying FDCA violation.’” Id. at *1 (quoting Nexus Pharms., Inc. v. Cent. Admixture Pharmacy Servs., Inc., 48 F.4th 1040, 1049 (9th Cir. 2022)).
Here, Bubak introduced a new distinction: state law claims can continue only if the violation of the FDA regulations was “plain.” 2025 WL 2860044, at *2 (citing Davidson, 106 F.4th at 849). However, if “further analysis is needed to determine whether [the] marketing actually violated the FDCA[,]” then the state law claims are preempted under Nexus. 2025 WL 2860044, at *2.
So, here we have it: implied preemption does not apply, and private rights of action are created, when, a “violation [of federal law] [i]s plain.” In so ruling, the court opened a new battleground of vagary centered on what is a “plain” violation of federal law. Apparently, when something is “plain,” to some judge, (s)he can divest the federal government of preemptive authority and imbue some individual with a private right of action to interpret and enforce federal law as (s)he sees fit. Bubak, doesn’t limit Davidson -- -- it broadens it.
For practitioners advising food companies, we’ve gone from uniform preemptive enforcement by the FDA to the new standard of the Law West of the Pecos whenever a local judge decides some violation of federal law is, “plain.”
IV. Uniformity, the NLEA, and Fragmentation Risk
By allowing state-law claims to proceed whenever plaintiffs invoke the “plain violation,” standard, the court reintroduces variability into a domain Congress sought to standardize.
The result will be a patchwork of judicially constructed standards layered on top of FDA regulations. Manufacturers will face inconsistent rulings regarding identical labels, complicating compliance strategies and increasing litigation risk. In effect, the judiciary becomes a parallel regulator, independent of federal oversight and federalism.
V. Using Davidson and Bubak as a Judicial Springboard
The Ninth Circuit’s analysis insufficiently respects the structural mandate of the NLEA requiring national uniformity in enforcement of food labeling standards. By permitting state law claims that privately interpret federal standards, and then empowering judicial enforcement of those private interpretations, the court undermines FDA’s primary regulatory authority and empowers inconsistent judicial interpretations.
Our firm was involved in exactly such a situation when a federal district court judge denied a motion to dismiss a complaint alleging noncompliance with federal labeling law. Within the next 18 months, three other judges (two in the same courthouse) ruled the other way in substantively identical cases. When the issue was brought back to the same judge who ruled in our case in the form of yet another substantively identical case, he wrote that his earlier ruling was wrong, reversed his prior faulty logic, and adopted the thinking of his judicial brethren going forward. Things had apparently gotten heated around the metaphorical courthouse water cooler. Giving a judge the power to decide what is a “plain” violation of federal law broadens the risk of inconsistent interpretations, and even judicial mischief. Unfortunately, the judge in our case, and his way of doing things, are not unique. The existence of judicial private interpretations is another element of law the NLEA sought to rein in and that Davidson and Bubak allow to run free.
Conclusion
Before Davidson and Bubak, whether a company complied with FDA regulations was sheltered from judicial inquiry. However, Davidson, as interpreted by Bubak, opens the possibility that a court can interpret the FDA regulations for itself and conclude that there was a “plain” violation. Strategic litigation planning must account for the possibility that federal compliance will not foreclose state consumer claims.
Until the Supreme Court resolves the circuit divide, food manufacturers face continued uncertainty -- -- precisely the condition Congress sought to eliminate when it enacted the NLEA in 1990. This is also, precisely, the condition in which Plaintiffs’ class action attorneys love to operate.
