A consumer protection case for Fox Mulder?

Hey, I get to make an X-Files reference!

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.