Under the pink (again)

Farm Raised Salmon Cases, 2006 WL 2510152 (Cal. App. 2 Dist.)

Various plaintiffs sued grocery stores alleging that the defendants sold artificially colored farmed salmon without disclosing to consumers the artificial coloring. This allegedly misled consumers about origin, quality, freshness, flavor and other characteristics, and potentially posed health risks, since wild salmon have natural pinkish coloring and farmed salmon is gray unless it's fed special chemicals. The cases were consolidated. The superior court found that the FDCA preempted the unfair competition, CLRA, false advertising, and negligent misrepresentation claims and that the matter should be referred to the FDA or the California Department of Health Services under the primary jurisdiction doctrine, and dismissed the complaint.

The court of appeals affirmed on the grounds that Congress intended to preclude private enforcement of the FDCA, which requires food labels to state that farmed salmon is artificially colored. Thus, a state law private right of action based on an FDCA violation would frustrate the purposes of exclusive jurisdiction for the FDA, and the state law claims were impliedly preempted. This is a substantial turnaround from other California cases, which have held that state law creating a consumer remedy for illegal conduct can allow a consumer to sue even when the law the defendant violated has no independent private right of action. It will be interesting to see what happens if the case goes further.

Also of note: The court pointed out that California law adopts FDA standards and that the state department of health has regulatory authority over misbranding of the sort alleged in the complaint. But if the principle that only the FDA can enforce FDA standards is so robust that it preempts state law as to private plaintiffs, enforcement by state officials seems problematic as well. In fact, the statutory language cited by the court allows the health department "or any other person" to seek an injunction against a violation of state law; either way, non-FDA enforcement creates the risk of multiple standards. Although the FDCA provides that in some circumstances, after giving notice to the FDA, states can sue under the federal law, California law authorizing the health department to act based on state law doesn't require the department to give notice to the FDA – and why would it, since the department is enforcing state law? I can't wait to see some aggressive defendant cite this case against a state enforcement action. It's not too surprising, then, that the AG argued in favor of the plaintiffs.

The court's conclusion was cast in sweeping terms: if the facts plaintiffs would have to prove to win their case would "demonstrate" a violation of the FDCA, state law is preempted. This fact-based analysis will create problems in sorting out summary judgment. It will also cover an awful lot of claims, maybe more than the court of appeals recognized, since the FDCA requires truthful labeling of pretty much everything under its jurisdiction, which is a significant percentage of the American economy. The courts in Lanham Act cases have been moving towards the theory that if a plaintiff can prove that a claim is misleading without relying on violation of FDA standards, it can prevail. This preemption theory would preclude that strategy, even though the plaintiffs in this case alleged that colored, unlabeled salmon misled consumers into thinking that the salmon was wild regardless of FDA regulation.

Related Wisconsin case with different outcome discussed here. Alternate preemption reasoning discussed here.

Tags:

• fda
• preemption
• falseadvertising