Preemption argument swims upstream to die

Farm Raised Salmon Cases, --- Cal. Rptr. 3d ----, 2008 WL 351637 (Cal.)

Plaintiffs’ purported class action alleged that various grocery stores violated state law by selling artificially colored farmed salmon without disclosing the artificial coloring. This allegedly deceived consumers into believing that the farmed salmon was wild salmon and/or partook of wild salmon’s superior quality, freshness, and flavor. Plaintiffs also allege that the additives pose health risks.

The claims were the standard California consumer protection claims: (1) unfair competition under the UCL; (2) unfair or deceptive trade practices under the CLRA; (3) false advertising; and (4) negligent misrepresentation. The predicate laws violated to make out the “unlawful” prong of the UCL claim included the state Sherman Food, Drug, and Cosmetic Law (Sherman Law).

Defendants successfully demurred on the ground that the suit was preempted by §337(a) of the FDCA, and the court of appeal affirmed. The California Supreme Court reversed.

In essence: the Sherman Law adopts federal standards as its own with respect to disclosure of artificial coloring. The FDCA states that food is misbranded if its labeling is false or misleading, and specifically if it contains artificial coloring without disclosure on the label. FDA regulations allow the use of coloring for salmon, but require disclosure of “Artificial Color,” “Color Added,” or a like phrase.

Federal law preempts state causes of action that aren’t identical to federal standards, but does nothing to interfere with identical state laws. Federal law also states that (with exceptions not relevant here) the FDCA can only be enforced by the United States. But, the court reasoned, that provision of the FDCA doesn’t bar private causes of action based on state laws that are identical to federal law. Plaintiffs’ claims are not based on violation of the FDCA, but rather on violation of state law that (not accidentally) is identical to federal law.

Defendants argued that the point of the federal provisions was to allow states to enforce their identical state laws, but not private parties; the court found no indication of that in the statutory scheme. Congress intended to allow state and federal regulation to coexist, and states are entitled to choose to allow private parties to enforce state laws. If Congress had meant to preempt private causes of action based on identical state law, it would have said so explicitly, especially given that food regulation is an area of traditional state police power. The relevant preemption provision deals with about 20 misbranding provisions and is extremely detailed – for example, it excludes maple syrup – and this is further evidence that Congress calibrated its preemption decision carefully. The Supreme Court’s Medtronic and Bates decisions, also refusing to preempt state-law claims based on state law identical to federal law, further supported the court’s conclusion.

In the end, plaintiffs are not seeking to enforce the FDCA, which they cannot do. They are seeking to enforce California law, which is separate in authority though identical in scope. Congress wanted state law to be identical to federal law in the food labeling area, but that’s all that it commanded – it didn’t try to cut back on state enforcement. As the court concluded, “while allowing private remedies based on violations of state laws identical to the FDCA may arguably result in actions that the FDA itself might not have pursued, Congress appears to have made a conscious choice not to preclude such actions.”