In Davidson v. Sprout Foods, Inc., — F.4th —, 2024 WL 3213277 (9th Cir. June 28, 2024), a divided Ninth Circuit panel held that private plaintiffs can bring claims for violations of California’s food labeling law that mirror federal law requirements, even though private plaintiffs lack a cause of action to enforce federal law directly.  In reaching this conclusion, the court determined that the Federal Food, Drug, and Cosmetic Act (FDCA) does not preempt private enforcement of California’s Sherman Law, even though the Sherman Law incorporates the FDCA by reference and private plaintiffs typically cannot sue to enforce the FDCA.

The plaintiffs alleged that Sprout Foods deceptively marketed pouches of baby food.  The labels stated the amount of certain nutrients in the pouches, such as protein and fiber.  The plaintiffs claimed that the labels were deceptive because the nutrient content falsely suggested that the products were beneficial for children.  Federal regulations prohibit nutrient content claims on baby food, and the court observed that “California law incorporates the same prohibition.”

The Nutrition Labeling and Education Act (NLEA) contains an express preemption provision that forbids states from enforcing laws regulating food labeling that differ from federal law.  See 21 U.S.C. § 343-1.  The NLEA does, however, permit states to adopt standards for food labeling that are identical to federal law.  The parties agreed that the claims were not expressly preempted.  Rather, Sprout Foods argued that the claims were impliedly preempted because they are premised on violations of standards set by the FDCA, and the federal government has nearly exclusive authority to enforce the FDCA.  The district court agreed, and dismissed the complaint.

The Ninth Circuit reversed.  Although the plaintiffs sought to enforce a state-law provision identical to federal law, the court saw a fundamental distinction between claims seeking to enforce the FDCA and claims seeking to enforce state law.  The court pointed out that the NLEA “expressly permit[s]” enforcement of the Sherman Law because it is identical to federal law.  The court concluded that it would be a “strange result” if the claims were nevertheless impliedly preempted.  Sprout Foods’s position, the court held, “ignores that Congress permitted identical state laws and offers no explanation for why Congress would want states to enact laws that its citizens cannot enforce.”

Judge Collins dissented from the court’s implied preemption holding.  In Judge Collins’s view, “a private claim based on state law that has no substantive content other than a parasitic copying of the FDCA’s requirements is impliedly preempted.”  Applying this rule, Judge Collins would have held the claims were preempted because the Sherman Law “is defined entirely by a federal regulation” and “has no independent substance.”  (Emphasis in original).  Judge Collins disagreed that it would be “strange” for states to enact laws that could not be privately enforced, since state government authorities could bring actions to enforce the state laws.

Although the panel split on whether the plaintiffs’ claims for violation of the Sherman Law were preempted, the panel unanimously affirmed the district court’s dismissal of the plaintiffs’ fraud claims as inadequately pleaded.  The plaintiffs alleged that the pouches were harmful because they contained high sugar content and pouch-based foods may lead to health risks.  The court found that the allegations about sugar “lack[ed] context,” including any details about what levels of sugar were harmful.  The remaining allegations were deficient because they “relie[d] on hypotheticals and contingencies outside the scope of this case” and “plaintiffs never actually alleged that Sprout’s products cause any” of the harms alleged in the complaint.

Companies operating in California should be mindful of the rule that emerges from Davidson.  Typically only the federal government can enforce the FDCA.  After Davidson, however, plaintiffs might seek to pursue state-law claims that are identical to federal-law provisions governing food labeling.