Filtered honey is honey despite Cal. law to the contrary

Brod v. Sioux Honey Ass'n Co-op., 2012 WL 3987516 (N.D. Cal.)

Brod filed a putative class action against Sioux for the usual California claims, alleging that it violated California law by marketing its “Sue Bee Clover Honey” as “Honey,” despite the fact that it did not contain pollen, as required by the standards for honey in California’s Food and Agricultural Code.  The court found preemption.

According to the Code, no pollen may be removed from honey unless the removal was “unavoidable in the removal of foreign inorganic or organic matter,” but all the pollen was filtered out by Sioux, and under the Code it’s unlawful to sell honey or a product marked as honey that doesn’t comply with the Code.

Sioux first argued that Brod and other class members lacked Article III standing for want of injury in fact.  Brod alleged that, had he known that Sue Bee Honey didn’t comply with California standards, he wouldn’t have bought it, though he didn’t identify any more specific injury.  Sioux argued that there was no injury in fact if the honey was “indiscernibly dissimilar” from what he thought he was buying; he didn’t allege that the honey was inferior, that he overpaid, or that he was otherwise harmed.  In the Kwikset case, the California Supreme Court held that consumers are injured when they’re deceived by mislabeling into buying things they otherwise wouldn’t have bought, even if someone else might “objectively view the products as functionally equivalent.”  As in that case, Brod alleged that Sioux mislabeled its product as honey, that this was false as a matter of law, that consumers saw and relied on the label, and that they wouldn’t have bought it otherwise. That was enough for standing under Kwikset, and thus for Article III.

Preemption, however, was a fatal barrier.  The NLEA added a preemption provision expressly preempting certain state laws, including labeling requirements, that weren’t identical to federal requirements.  The key provision here, 21 U.S.C. § 343(i), provides in relevant part that “a food shall be deemed to be misbranded “[u]nless its label bears (1) the common or usual name of the food, if any there be ….”  Honey is not apparently subject to any more specific regulatory definition.  Thus, Sioux argued that the law required its product to be labeled as “honey” as its common or usual name.  The court agreed.  The parties didn’t dispute that the product met the typical dictionary definition of honey.  Many states have defined honey similarly to the dictionaries; none required honey to contain non-filtered pollen.  Furthermore, prior regulations on grades of honey reinforced the idea that the common or usual name for the product was “honey.”  These former standards, which used to be part of the CFR until removed as unnecessary regulations, established a voluntary grade system for honey, and they had a grade for honey with only a trace of pollen.  Thus, “even filtered honey was considered honey.”  Finally, Sioux could not identify an alternative common or usual name for the product. Thus, under the FDCA, Sue Bee Clover Honey had to be labeled “honey.”  Since California law prohibited this very labeling, California law was preempted.

California was not powerless to act in this area: a requirement of a disclosure that the honey was filtered or pollen free wouldn’t expressly conflict with § 343(i). But the state couldn’t ban the use of the label “honey” for products which are commonly and usually called honey.

Brod suggested that this wasn’t a labeling issue, but a substantive ban on the sale of filtered honey.  But the complaint made clear that the violation here turned not on the content of the product but on its label.

Given this ruling, Sioux’s Dormant Commerce Clause argument was moot.