Shook, Hardy & Bacon attorneys Frank Cruz-Alvarez, Jennifer Voss, Jared Sherr and Talia Zucker have authored an October 2015 Washington Legal Foundation (WLF) monograph surveying eight years of U.S. Supreme Court rulings to forecast trends in federal preemption analysis for practitioners and policymakers. With a forward by GlaxoSmithKline Senior Vice President and General Counsel Daniel Troy, Federal Preemption: Origins, Types and Trends in the U.S. Supreme Court considers how the doctrine of federal preemption "will continue to challenge the judicial system in light of Congress's increasing desire to enact federal regulatory schemes that implicate many traditional state government powers and functions." To this end, the monograph aims to provide "a guide to the competing views on preemption expressed by the United States Supreme Court and to anticipate what participants in the judicial system can expect in the coming years as new preemption problems find their way to the Court." Examining…
Tag Archives preemption
The Ninth Circuit Court of Appeals has affirmed a lower court’s ruling dismissing a challenge to California’s law criminalizing the sale or distribution of shark fin. Chinatown Neighborhood Ass’n v. Harris, No. 14-15781 (9th Cir., order entered July 27, 2015). The plaintiffs, two groups representing Asian-Americans who seek to serve shark-fin soup, a traditional Chinese dish, argued that the law violates the Commerce Clause of the U.S. Constitution and is preempted by the Magnuson-Stevens Act. The Ninth Circuit rejected the claims, finding that the lower court did not err in refusing to grant leave to the organizations so that they could fully brief the preemption issue. Further, the shark-fin ban does not violate the Commerce Clause, the court found, because the effects on interstate commerce result from regulation of in-state conduct. Additional details about the groups’ complaint appear in Issue 447 of this Update. Issue 574
A Hawaii federal court has ruled that a Maui ban on genetically modified organisms (GMOs) is preempted by the Plant Protection Act and therefore invalid. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-0582 (D. Haw., order entered June 30, 2015). The decision begins with an introduction clarifying that the court recognizes the importance of the questions of whether GMOs pose risks, noting, “This order is not an attempt by this court to pass judgment on any benefit or detriment posted by [genetic engineering (GE)] activities or GMOs.” The Maui prohibition on GMO cultivation or propagation passed in November 2014 and supporters of the initiative filed a lawsuit for a declaratory judgment shortly thereafter. Detractors then filed a lawsuit the following day seeking to invalidate the ban. After disposing with preliminary motions filed by a supporter organization, Shaka Movement, the court turned to the issue of preemption. The federal…
A New York federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging that Hain Celestial’s Earth’s Best® food and body-care products are deceivingly labeled as “organic,” finding that the Organic Foods Production Act (OFPA) does not preempt the plaintiffs’ claims. Segedie v. Hain Celestial Grp., No. 14-5029 (S.D.N.Y., order entered May 7, 2015). The plaintiffs challenged 69 food products and 20 body-care products labeled “organic,” “natural” or “all natural,” arguing that they contain ingredients inconsistent with the company’s claims. In assessing precedent on preemption, the court found that a federal agency’s approval of a label does not bar any challenge to that label. The court also determined that the plaintiffs’ claims were legally sufficient as to both the “organic” and “natural” challenges. Hain argued that the ingredients in question were subject to an exemption under OFPA because they were nutrient vitamins or…
A Florida federal court has dismissed a case alleging that Campbell Soup Co. misleadingly labeled its V8 V-Fusion® Pomegranate Blueberry and Acai Mixed Berry products as “100% juice” in a way that implied they contained only the flavoring juices rather than a base mix of fruit and vegetable juices. Bell v. Campbell Soup Co., No. 14-291 (N.D. Fla., order entered December 11, 2014). The plaintiff argued that the label was misleading because the “100% juice” statement appeared so close to the flavor name on the label, but after examining each labeling statement, the court disagreed. “[W]hen a product’s flavor comes from a juice that is not the primary ingredient, the name may include the flavoring juice, without including other juices, so long as the label includes the statement ‘that the named juice is present as a flavoring.’ [T]he flavor—in this instance pomegranate and blueberry—must be ‘followed by the word ‘flavored’ in…
Addressing a question of first impression, a California appeals court has dismissed a putative class action alleging that Herb Thyme Farms mislabeled its certified organically grown herbs as “USDA Organic” because the contents included a mix of organically and conventionally grown herbs. Quesada v. Herb Thyme Farms, Inc., No. B239602 (Cal. Ct. App., 2d Dist., Div. 3, decided December 23, 2013). According to the court, on appeal, the plaintiff changed her theory of liability from alleged violations of state consumer protection laws to violation of the California Organic Products Act of 2003, a federally approved state organic program. She cited Farm Raised Salmon Cases, 42 Cal. 4th 1077 (2008), to counter the trial court’s conclusion that her claims were preempted under federal law. Distinguishing Farm Raised Salmon Cases, the court was guided instead by Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation v. Aurora Organic Dairy, 621 F.3d 781…
A federal court in California has dismissed, without prejudice, the action for declaratory and injunctive relief brought against the San Francisco city attorney, seeking to halt his investigation of Monster Beverage’s energy drinks and efforts to regulate their formulation, labeling and promotion. Monster Beverage Corp. v. Herrera, No. 13-0786 (C.D. Cal., decided December 16, 2013). Additional information about the lawsuit appears in Issue 482 of this Update. The matter was before the court on the city attorney’s renewed motion to dismiss. Essentially, the court determined that the Younger abstention doctrine, which “counsels federal-court abstention when there is a pending state proceeding,” applied because a state action brought by the city attorney is pending, the action implicates important state interests, not all of the city attorney’s claims are preempted under federal food-labeling laws, and the state proceedings will be adequate for the consideration of Monster’s constitutional claims. Details about the city…
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
The U.S. Supreme Court has reportedly asked the solicitor general to file a brief discussing the federal preemption issues in case filed against retailers for failing to inform California consumers that the farm-raised salmon they sold was artificially colored. Albertson’s, Inc. v. Kanter, No. 07-1327 (U.S.). FDA regulations allow salmon farmers to augment the normally grayish pigment of farm-raised fish with chemicals that turn the flesh pink like that of wild salmon. Federal law also requires that the use of coloring be indicated on product labels, but does not allow individuals to enforce the law through litigation. The plaintiffs filed several lawsuits in state court alleging that the grocery stores violated federal and state food and drug labeling laws by failing to provide this information to consumers. A trial court and intermediate appellate court found that federal law preempted the claims, but the California Supreme Court ruled in plaintiffs’ favor. Further…
12
