In a win for implied preemption, the Ninth Circuit recently affirmed dismissal of supplement marketing claims under California’s Unfair Competition Law (UCL). The case, Bubak v. Golo, LLC, No. 24-492 (9th Cir. Oct. 9, 2025), held that the plaintiff’s UCL claim was impliedly preempted because it depended entirely on alleged violations of the federal Food, Drug, and Cosmetic Act (FDCA), which may be enforced only by the federal government.Continue Reading Ninth Circuit Affirms Dismissal of Supplement Marketing Claims as Impliedly Preempted
Post-Cantero, Ninth Circuit Allows Prior National Bank Act Preemption Decision To Remain Standing
In 2018, the Ninth Circuit held in Lusnak v. Bank of America, N.A. that California’s interest-on-escrow law was not preempted by the National Bank Act because the California law did not prevent or significantly interfere with the bank’s exercise of its powers. 883 F.3d 1185 (9th Cir. 2018). Six years after Lusnak, the Supreme Court held in Cantero v. Bank of America that test for preemption under the National Bank Act requires courts to “make a practical assessment of the nature and degree of the interference caused by a state law,” and courts should do so by engaging in a “nuanced comparative analysis” that compares the interference caused by previous state laws that were challenged as preempted before the Supreme Court to the law at issue. 602 U.S. 205, 219–21 (2024). Continue Reading Post-Cantero, Ninth Circuit Allows Prior National Bank Act Preemption Decision To Remain Standing
Post-Cantero, First Circuit Sets Demanding National Bank Act Preemption Test
Lenders often require borrowers to keep money in a mortgage escrow account, and those funds are used to pay taxes, mortgage insurance, and other costs throughout the year. At least 12 states require lenders to pay the borrower interest on the money held in these escrow accounts. And for more than a decade, certain national banks have challenged the applicability of those state laws to them, arguing the laws are preempted by the National Bank Act because they would significantly interfere with the exercise of a federally granted banking power.[1]
These cases have resulted in a trip to the Supreme Court. In Cantero v. Bank of America, the Supreme Court explained that the test for preemption under the National Bank Act requires courts to “make a practical assessment of the nature and degree of the interference caused by a state law,” and courts should do so by engaging in a “nuanced comparative analysis” that compares the interference caused by previous state laws that were challenged as preempted before the Supreme Court to the law at issue.[2] 602 U.S. 205, 219–21 (2024). Continue Reading Post-Cantero, First Circuit Sets Demanding National Bank Act Preemption Test
Ninth Circuit Addresses National Bank Act Preemption after Supreme Court Decision
In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts. See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).Continue Reading Ninth Circuit Addresses National Bank Act Preemption after Supreme Court Decision
First Circuit Finds “Fraud on the FDA” Claims Preempted by the FDCA
Over the last several years, food and drug manufacturers have litigated countless class action lawsuits claiming that their products are misleadingly advertised. Many of these lawsuits claim that a product’s packaging is misleading because it allegedly violates FDA labeling rules. Last week, in DiCroce v. McNeil Nutritionals, LLC, — F.4th —, No. 22-1910, 2023 WL 6056144 (1st Cir. Sept. 18, 2023), the First Circuit found that these claims are impliedly preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”). Continue Reading First Circuit Finds “Fraud on the FDA” Claims Preempted by the FDCA
Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function Claims”
Recent decisions from the First and Ninth Circuits may help defendants facing false advertising challenges to certain types of labeling statements known as “structure/function claims.” Three courts have held that such challenges were preempted by the Food, Drug, and Cosmetic Act (FDCA).Continue Reading Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function Claims”
A Closer Look: Sixth Circuit Expands Implied Preemption Defense
In a decision that could be useful to defendants in highly-regulated industries that face class action claims predicated on violations of federal law, a recent Sixth Circuit opinion confirmed that implied preemption applies to state-law claims predicated on violations of the EPA’s vehicle fuel economy and emissions regulations. This decision confirms the expansion of the implied preemption defense to a new industry, and may signal further expansions in the future. Continue Reading A Closer Look: Sixth Circuit Expands Implied Preemption Defense