Lilly v. ConAgra Foods, Inc., --- F.3d ----, 2014 WL 644706
(9th Cir. Feb. 20, 2014)
Lilly alleged that the tasty coating on sunflower
seed shells is designed to be eaten, and is eaten, before the inedible shell is
spat out and the kernel eaten. The
package instructions expressly tell consumers to put the shells in their
mouths. Therefore, she argued, the sodium content in
a serving of sunflower seeds must include the sodium in the edible coating, but
ConAgra didn’t disclose that additional sodium, or didn’t disclose it with
equal prominence to the sodium in the kernels.
She brought the usual California claims.
The district court dismissed her claims as preempted; over a
dissent, the court of appeals reversed.
The NLEA requires that a food’s label include the amount of
sodium “in each serving size or other unit of measure.” The FDA has regulations about how this is to
be calculated. First, “[n]utrition
information relating to food shall be provided for all products intended for
human consumption.” Second, the “declaration of nutrient and food component
content shall be on the basis of the food as packaged or purchased.” Third, the
amount of sodium in the food is “based on only the edible portion of food, and
not bone, seed, shell, or other inedible components.”
But Lilly wasn’t trying to force ConAgra to include the
sodium content of the shells. She wanted ConAgra to disclose the sodium
content of the coatings on top of the
shells, which “most certainly are not inedible. To the contrary, the coatings
impart flavor and are indisputably intended to be ingested as part of the
sunflower seed eating experience. Indeed, these coatings come in flavors such
as ‘Ranch’ and ‘Nacho Cheese’ precisely because they are to be consumed before
the shell is discarded.” Because federal
law requires that sodium listings include the “edible portion” of the food, the
portion of the edible coating on the shell “must be accounted for in the
calculation of the sodium content.”
Lilly sought to enforce state requirements identical with federal law,
and thus her claims were not preempted.
ConAgra argued that the Nutrition Facts Panel on the
sunflower seeds references only the kernels, any reasonable consumer would
understand that the sodium listing did not include the amount on the shells.
(Comment: yeah, right.) But that was a
factual question, not for the panel.
Judge Vinson, sitting by designation, dissented. He would
have found that the regulation naturally and plainly excluded the shell. “Although we might prefer a regulation that
includes the shell’s absorbed salt and to draw a distinction between an edible ‘coating’
and an inedible shell, we are nonetheless bound to apply this unambiguous
regulation objectively as it has been written.”
Any revision should be left to the FDA.
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1 comment:
Sunflower seeds and Fox Mulder! It's been awhile since I've thought of that great character--well done on the reference!
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