This post comes from the Cozen O’Connor side of the blog.
Today’s story is about a class action, one in which the defendant was sued for labeling its product “No Sugar Added” even though everyone involved, including the plaintiff, understood from the very start that no sugar had been added to the defendant’s product. You can probably already see where this is going.
The named plaintiff in Perez v. The Kroger Co. 2018 WL 4735701 (C.D.C. Sept. 28, 2018), alleged that the defendant, The Kroger Company, improperly labeled its 100% Apple Juice product as No Sugar Added. She hoped to represent a class that would seek financial damages for this alleged misrepresentation under California’s familiar Unfair Competition (“UCL”), False Advertising (“FAL”) and Consumer Legal Remedies (“CLRA”) laws. And she based her claims on an FDA regulation that prohibited food manufacturers from labeling a product as No Sugar Added unless, among other things, the food that the product was intended to resemble, or for which it was a substitute, “normally contains added sugar.” According to plaintiff, sugar is not normally added to apple juice (presumably because apple juice already has enough), so Kroger’s 100% apple juice product was mislabeled as No Sugar Added.
Now, as unsettling as the prospect might be of allowing a product with no sugar added to remain on the market labeled No Sugar Added, plaintiff’s claims nonetheless failed. In fact, plaintiff’s claims did not survive a motion to dismiss. Why? On this blog you should already know that answer about 40% of the time—preemption.
The Nutrition Labeling and Education Act (“NLEA”), an amendment to the FDCA, contains an express preemption clause. It is a strong one. It prohibits any state from enforcing a food labeling requirement—through, say, class action claims under the UCL, FAL and CLRA—that is “not identical to” FDA labeling regulations. Id. at *3. And plaintiff’s interpretation of the FDA’s labeling regulation was not the same as the FDA’s interpretation. The FDA interpreted it much less narrowly.
Plaintiff claimed that, under the FDA regulation, Kroger could use a No Sugar Added label only if sugar is normally added to the specific product that Kroger’s 100% apple juice product was intended to “resemble” or “substitute”—i.e., apple juice. The FDA, on the other hand, expressed a different view in a letter responding to a public interest group of some sort. According to the FDA, the comparison product need not have “the same name or the same juice content.” In the case of Kroger’s 100% apple juice product, this meant that it could be considered a “substitute” for a broader range of products than proposed by plaintiff, including “juice with added sugar, fruit-flavored soft drinks sweetened with sugar, or other sugar-sweetened beverages.” Id. at *6-7.
The district court had to decide whether to accept this FDA interpretation. To do this, the court had to determine whether, under Auer v. Robbins, 519 U.S. 452, 461–62, (1997), the FDA’s interpretation was “plainly erroneous or inconsistent with the regulation.” The court held that it was not. Rather, it found the FDA’s interpretation to be the result of a fair and considered judgment. The court gave the FDA’s interpretation deference and, accordingly, held that plaintiff’s claims were preempted. Id. at *6-7.
Interestingly, plaintiff argued that the court should not defer to the FDA’s interpretation because the FDA had staked out “nothing more than a convenient litigating position.” Id. at *6. That argument, if anything, backfired. The district court was not aware of any litigation actually involving the FDA in which its interpretation of this regulation was at issue. Rather, the FDA stated its interpretation of the regulation in response to the letter from the public advocacy group.
On the other hand, the district court noted that plaintiff’s counsel had, in fact, brought similar claims that were dismissed by other courts. With this history in mind, the court admonished plaintiff’s “counsel to tread carefully in continuing to bring these particular claims.” Id. at *7.