SHB Attorneys Discuss Preemption Ruling in Nutrient-Content Class Action

Shook, Hardy & Bacon Global Product Liability attorneys Frank Cruz-Alvarez
and Talia Zucker have co-authored an article about a recent federal court
ruling that rejected The Hershey Company’s preemption-based challenge to a
putative class action alleging that the nutrient content claims on its product
labels violate the law. Additional information about Khasin v. The Hershey Co.,
No. 12-1862 (N.D. Cal. 11/9/12), appears in Issue 463 of this Update.

Titled “The Food Court Stays Open: Preemption Defense in Food Labeling
Class Action Rejected,” the article was published on December 12, 2012,
in the Washington Legal Foundation’s blog “The Legal Pulse.” Noting that
the ruling was disappointing for food manufacturers, the authors contend
that “hope is not lost. Express preemption remains an essential argument
for food company defendants in such litigation and though rejected in the
Hershey case, not all facts lend themselves to such a gloomy conclusion.” As
an example, they cite a case currently on appeal in the Third Circuit; it was
dismissed by a district court which found that the plaintiff was seeking to
impose label requirements different than those FDA requires. “And as such, his
claims were expressly preempted.”