Simpson v. Kroger Corp.
162 Cal. Rptr. 3d 652
Cal. Ct. App.2013Background
- Plaintiff Mary L. Simpson purchased a tub of Challenge "Spreadable Butter" (with canola oil or with canola & olive oil) and sued as a putative class, alleging misleading labeling under California consumer-protection statutes and the California Milk and Milk Products Act (MMPA).
- Labels included prominent "CHALLENGE BUTTER" and "SPREADABLE BUTTER" text, with smaller disclosures such as "WITH CANOLA OIL" or "WITH CANOLA & OLIVE OIL," and ingredient panels listing oils and cream.
- Plaintiff pleaded causes of action for unfair competition (Bus. & Prof. Code § 17200), false advertising (§ 17500), and the Consumer Legal Remedies Act, seeking damages and injunctive relief under the MMPA.
- Defendants demurred, arguing federal preemption under the FDCA/NLEA and that labeling complied with federal requirements; trial court sustained the demurrer, finding MMPA claims preempted and denying leave to amend.
- On appeal the court reviewed preemption de novo, considered both the MMPA and Sherman Law (California Health & Safety Code) claims, and whether a reasonable consumer could be misled by the label prominence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MMPA labeling claims are preempted by the FDCA/NLEA | Simpson: MMPA labeling requirements (e.g., prominence of the word "spread") are effectively identical to federal margarine/labeling rules, so not preempted | Defendants: FDCA/NLEA preempts differing state labeling requirements; federal rules govern these nonstandardized butter-with-oil products | Held: MMPA claims are expressly preempted under §343-1 because California requirements are not identical to federal rules |
| Whether Sherman Law misbranding/labeling claims are preempted | Simpson: Sherman Law misbranding provisions mirror FDCA misbranding and therefore are not preempted | Defendants: Federal law preempts state claims that conflict with FDCA; plaintiff did not plead Sherman Law claims properly | Held: Sherman Law labeling provisions at issue are not preempted; they are identical to FDCA provisions and may be enforced under state law |
| Whether label prominence (overemphasis of "butter") is misleading to a reasonable consumer | Simpson (in reply): Prominent "BUTTER" suggests standard butter; smaller disclosures are not sufficiently prominent, so consumers are misled | Defendants: Labels clearly disclose presence of canola/olive oil; common-or-usual-name rules permit "butter" modifier; no reasonable consumer would be deceived | Held: As a matter of law, a reasonable consumer would not be misled—the label plainly indicates butter plus oil; dismissal with prejudice affirmed |
| Whether leave to amend should have been granted to plead Sherman Law claims | Simpson: Trial court abused discretion by denying leave to amend to assert Sherman Law claims | Defendants: Amendment could not change preemption/legal defects; plaintiffs delayed raising Sherman Law theory | Held: Denial of leave to amend was not an abuse of discretion because Sherman Law theory would not cure the legal deficiencies (and plaintiff could not show reasonable consumer deception) |
Key Cases Cited
- Farm Raised Salmon Cases v. Dep't of Health Servs., 42 Cal.4th 1077 (California Supreme Court) (preemption under NLEA/FDCA; states may impose identical labeling rules; analyze express preemption narrowly)
- Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (U.S. Supreme Court) (no private right of action under FDCA)
- Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal.) (reasonable-consumer deception can be resolved as a matter of law in some packaging cases)
- Freeman v. Time, Inc., 68 F.3d 285 (9th Cir.) (court may dismiss false-advertising claims where no reasonable consumer could be misled)