Cohen v. ConAgra Brands, Inc., No. 20-55969 (9th Cir. 2021)
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The district court dismissed a putative class action challenge to ConAgra’s poultry labels and its website advertising, alleging that ConAgra falsely advertised its frozen chicken products as natural and preservative-free, when in fact they contain synthetic ingredients. The court found the claims preempted by the federal Poultry Products Inspection Act (PPIA), 21 U.S.C. 467e, under which the U.S. Department of Agriculture’s Food Safety and Inspection Service’s (FSIS) had approved ConAgra’s poultry labels.
The Ninth Circuit reversed in part; the mere existence of the label was insufficient to establish that it was reviewed and approved by FSIS. Preemption is an affirmative defense, and when the parties dispute whether review occurred at all, the defendant must produce evidence that the label was reviewed and approved by FSIS. If the evidence on remand shows that ConAgra’s label was approved by FSIS, then the claims are preempted. The plaintiff may not assert that FSIS’s approval decision was wrong. ConAgra’s website representations were not reviewed by FSIS. The label and the website were not materially identical. A challenge to that part of the website’s representation that was materially different from the representations on the label is not preempted. The court rejected an argument under the primary jurisdiction doctrine, a prudential doctrine under which courts may determine that the initial decision-making responsibility should be performed by the relevant agency rather than the courts.
Court Description: Product Labels / Preemption. The panel affirmed in part and reversed in part the district court’s dismissal of a plaintiff’s putative consumer class action alleging that ConAgra Brands, Inc. falsely advertised its frozen chicken products as natural and preservative-free, when in fact they contained synthetic ingredients. The district court found that the U.S. Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) had approved ConAgra’s poultry labels, and therefore plaintiff’s claims challenging both the label and ConAgra’s website advertising were preempted by the federal Poultry Products Inspection Act (“PPIA”). The district court dismissed all of plaintiffs’ claims. A plaintiff who brings a state law claim that the approved label is false or misleading is seeking to impose a requirement different from the federal requirements, and that state law claim is preempted by 21 U.S.C. § 467e, which bars plaintiffs from challenging the agency’s application of the PPIA’s mislabeling standards through state law claims. Plaintiff alleged that the PPIA contained a savings clause that allowed his claims to survive preemption. Plaintiff mainly disputed whether there was enough evidence in the record to support the district court’s finding that ConAgra’s labels were reviewed and approved by FSIS. The panel held that the mere existence of the label was insufficient to COHEN V. CONAGRA 3 establish that it was reviewed and approved by FSIS. Preemption is an affirmative defense, and when the parties dispute whether FSIS review occurred at all, the defendant must produce evidence that the label was reviewed and approved by FSIS. The panel reversed the district court’s preemption of plaintiff’s claims challenging the product label. On limited remand, the parties should submit evidence about (and the district court should decide) only whether ConAgra’s label was reviewed and approved by FSIS. If the evidence shows that ConAgra’s label was approved by FSIS, then plaintiff’s claims are preempted. Plaintiff may not try to argue or show that FSIS’s approval decision was wrong. ConAgra’s website representations were not reviewed by FSIS. The label and the website were not materially identical. The website representation about the chicken products read: “They’re made with 100% natural, white meat chicken and without preservatives, artificial flavors, or artificial colors.” The panel held, assuming that the product labels were reviewed by FSIS, plaintiff could not challenge the first half of that representation because it was essentially identical to the representation on the product label – “Made with 100% Natural White Meat Chicken.” Any challenge to that phrase was premised ultimately upon the inadequacy of the product label, and preempted. The second half of the representation was materially different from the representations on the label. The panel held, accordingly, that plaintiff’s state law claims challenging ConAgra’s website representation that the chicken products as a whole contained no preservatives, artificial flavors, or artificial colors were not preempted. The panel declined ConAgra’s invitation to affirm the district court’s decision on five different grounds. The panel 4 COHEN V. CONAGRA did not consider four of ConAgra’s arguments. The panel did reach ConAgra’s fifth argument, and concluded that the primary jurisdiction doctrine was inapplicable here. The doctrine is a prudential doctrine under which courts may determine that the initial decision-making responsibility should be performed by the relevant agency rather than the courts. The panel held that none of the justifications for the primary jurisdiction doctrine existed here.
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