16 F.4th 1283
9th Cir.2021Background
- Plaintiff Robert Cohen bought ConAgra frozen chicken products labeled with front-panel claims such as “Made with 100% Natural White Meat Chicken” and “No Preservatives.”
- The products’ ingredient lists disclosed additives including sodium acid pyrophosphate, sodium tripolyphosphate (a preservative), and modified corn starch.
- Cohen sued under California consumer-protection laws (CLRA, UCL, FAL), alleging the labels and ConAgra’s website representations were false or misleading and sought damages and injunctive relief.
- The district court concluded FSIS had approved ConAgra’s labels and dismissed all claims as preempted by the Poultry Products Inspection Act (PPIA); ConAgra later submitted an FSIS approval document on appeal via a Rule 28(j) letter.
- The Ninth Circuit reviewed the PPIA preemption issue: it affirmed that FSIS approval preempts state-law challenges to approved labels but held the record lacked sufficient evidence of FSIS approval, and it found the website statement distinct from the label and not preempted.
- Result: affirmed in part, reversed in part, and remanded for limited fact-finding on whether FSIS reviewed and approved the labels; website-based claims survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PPIA preempts state-law claims challenging product labels when FSIS reviewed/approved the labels | Cohen: PPIA savings clause allows state claims; consumers can enforce label truthfulness | ConAgra: FSIS label approval preempts state-law mislabeling claims | If FSIS approved the label, state-law claims challenging that label are preempted; otherwise not resolved—preemption depends on proof of FSIS approval |
| Whether the existence of the label alone proves FSIS review/approval | Cohen: mere label does not prove FSIS approval; defendant must show approval | ConAgra: label evidence and later-submitted FSIS approval (28(j)) establish approval | Mere existence of the label is insufficient; defendant bears burden to produce evidence of FSIS review/approval; remand for limited proceedings to adjudicate that fact |
| Whether website advertising that paraphrases label is preempted | Cohen: website statements are actionable and may be broader than the label | ConAgra: website imaging/descriptions are equivalent to the label and thus preempted if label was approved | Website claim split: wording matching the label is preempted if label was approved; website language that materially differs (e.g., stating entire product is “without preservatives”) is not preempted |
| Whether primary jurisdiction requires agency resolution before courts decide | Cohen: court can decide preemption and related claims | ConAgra: refer issue to FSIS under primary jurisdiction | Primary jurisdiction doctrine inapplicable here; courts may decide; no stay or administrative referral required |
Key Cases Cited
- Webb v. Trader Joe’s Co., 999 F.3d 1196 (9th Cir. 2021) (FSIS review/approval of poultry labels preempts state mislabeling claims)
- National Broiler Council v. Voss, 44 F.3d 740 (9th Cir. 1994) (states may enforce federal requirements but may not impose additional labeling requirements)
- Taylor AG Indus. v. Pure-Gro, 54 F.3d 555 (9th Cir. 1995) (advertising claims premised on a label’s inadequacy are treated as label claims for preemption)
- In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Pracs. Litig., 621 F.3d 781 (8th Cir. 2010) (narrow exception allowing challenge to facts underlying agency approval)
- Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (agency premarket approval imposes federal requirements for preemption analysis)
- Durnford v. MusclePharm Corp., 907 F.3d 595 (9th Cir. 2018) (preemption is an affirmative defense; defendant must plead and support it)