Federal Court Dismisses Suit Challenging Absence of Bee Pollen in Honey

A federal court in Wisconsin has dismissed as preempted a putative class
action alleging that the company which makes Sue Bee Clover Honey®
violates a state honey-labeling standard by failing to disclose that the product
does not contain bee pollen. Regan v. Sioux Honey Ass’n Coop., No. 12-758
(E.D. Wis., decided January 31, 2013). The court also dismissed an
unjust enrichment claim and a cause of action based on an alleged violation
of the Food, Drug, and Cosmetic Act (FDCA).

According to the court, the Wisconsin honey standard is based on a Codex Alimentarius provision that prohibits the removal of pollen from honey “except where this is unavoidable in the removal of foreign inorganic or organic matter.” Because federal law has no standard of identity for honey, under the Nutrition Labeling and Education Act (NLEA), the label must therefore bear the “common or usual name” of a food contained therein. The court determined that “honey” was the common name for the product and that a state law requiring a different designation was expressly preempted under the NLEA. So ruling, the court rejected a conflict preemption analysis used by a federal court in California considering similar litigation and issues.

The court found the unjust enrichment claim preempted and then ruled that
the plaintiff could not bring a private right of action for violation of Wisconsin’s
Administrative Code based on federal labeling rules under the FDCA,
because that statute “creates no private right of action.” The court further
ruled that even if he could bring the action, the plaintiff failed to state a claim
because pollen is not a ‘characterizing ingredient or component’ of honey—
“honey is honey, even in the absence of pollen,” the court said.