MIRKO CARREA, on behalf of himself and those similarly situated v. DREYER’S GRAND ICE CREAM, INC., No. 11-15263 (9th Cir. 2012), is a recent decision from the Ninth Circuit affirming a dismissal of a putative class action for failure to state a claim for cognizable relief.  This blog has reported on class or collective action decisions; they form an ever-increasing component of international practice for a number of reasons, including that U.S. courts are increasingly dismissing international suits in favor of non-U.S. jurisdictions and because non-U.S. courts and other tribunals are increasingly accepting of these litigations under non-U.S. rules and procedures.  A good example of the former and latter phenomena can be seen in looking at the post-Supreme Court jurisprudence in Morrison, involving the federal securities laws or RICO (see, e.g., here and here).

Dryer’s involved claims under the consumer protection laws of New York and California.  The brief appellate court decision adverts to the plaintiffs’ claims as involving Dryer’s use of label advertising that its Drumstick packaging contains “0% Trans Fat”.   The Court of Appeals affirmed that any claim under state consumer protection laws was expressly preempted by the U.S. Food, Drug & Cosmetic Act, 21. U.S.C. sec. 343-1(a)(5).  As a result, Dryers was required to state that its product had zero trans fat even though it did have some, but just under .5 grams. 

The Court of Appeals went further.  It said that

In essence, Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted.  See Degelmann v. Advanced Med. Optics, Inc., 659 F.3d 835, 840-42 (9th Cir. 2011).

The Court of Appeals, however, then went on to discuss other statements made in Dryer’s publications.   Here the Court affirmed dismissal because the claims were “implausible” and “strain[ed] credulity”.    The claim therefore failed to satisfy the Court’s “reasonable consumer” standard.  The Court did not explain the basis for its making those fact-like determinations in reviewing the motion.