Lead Opinion
OPINION
Sоme days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights, and the most complicated, controversial problems in civil, criminal and administrative law. Today we consider the coating on sunflower seeds.
In her putative class action cоmplaint, the plaintiff alleges that the tasty coating placed on sunflower seed shells is intended to be ingested — and is ingested — before the inedible shell is spat out and the kernel eaten; that is what is expected before exрectoration. Therefore, the sodium content in a “serving” of sunflower seeds, as stated on the package, must include the sodium contained in the edible coating.
Taking those allegations as true fоr the purposes of a motion to dismiss, we hold today that the sodium content of the edible coating added to sunflower seed shells must, under federal law, be included in the nutritional information disclosed on a package of sunflower seeds. Because plaintiffs state-law claims, if successful, would impose no greater burden than those imposed by federal law, her state law claims are not preempted. We reverse the granting of the defendant’s motion to dismiss.
FACTUAL BACKGROUND
ConAgra Foods, Inc. sells several varieties of sunflower seeds under its “David”
Lilly alleged that “ConAgra’s Sunflower Seeds’ packages expressly state that the intended manner for consuming the Sunflower Seeds is to place the entire shell and the kernel in the mouth.” Thе complaint quoted the directions on the packaging itself: “[C]rack the shell with your teeth, eat the seed and spit the shell. Experienced seeders pop a handful of seeds in their mouth and store thеm in one cheek, then transfer a seed over to the other side -with their tongue, crack it, then eat the seed and split [sic] the shell.” Lilly alleged that consumers following these instructions “ingest some, if not all, of the sodium from the sunflower seeds’ shell which is not reflected in the Nutrition Facts of the Products.” Lilly alleged that minimizing or altogether ignoring the sodium content on the shells in the label is misleading and that ConAgra had a duty to disclosе the sodium content of both the “Sunflower Seeds’ kernel and shell.”
Lilly asserted causes of action under three California statutes: the Consumer Legal Remedies Act (Cal. Civ.Code § 1750 et seq.), the False Advertising Laws (Cal. Bus. & Prof.Code § 17500 et seq.), and the Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.). ConAgra moved to dismiss the complaint, arguing that federal law expressly preempted these state law claims as they would impose food labeling requirements different from those required by federal law. The district court agreed, ruling that Lilly sought “to impose an additional sodium labeling requirement that [was] not identical to the” Nutrition Labeling and Education Act (21 U.S.C. § 343) and thus her “state law claims [were] expressly preempted.” Lilly timely appealed.
DISCUSSION
We have jurisdiction to review this appeal under 28 U.S.C. § 1291. We review an order granting a motion to dismiss de novo. Cousins v. Lockyer,
The statutory and regulatory framework undergirding this case is straightforward. The Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301 et seq., governs the labeling of food, drugs, cosmetic products and medical devices. Congress amended the FDCA in 1990 by enacting the Nutrition Labeling and Education Act, which established uniform food labeling requirements, including the familiar and ubiquitous Nutrition Facts Panel found on most food packages. NLEA requires that a food’s label include the amount of sodium “in eаch serving size or other unit of measure.” 21 U.S.C. § 343(q)(l)(D). NLEA also provides that no state may “directly
The United States Food and Drug Administration has promulgated various regulations that are relevant to how a serving of sodium is to be calculated. First, the regulations require that the “[n]utrition information relating to food shall be provided for all products intended for human consumption.” 21 C.F.R. § 101.9(a). Second, the “declaration of nutrient and food component content shall be on the basis of the food as packaged or purchased.” 21 C.F.R. § 101.9(b)(9). Lastly, and most importantly for our purposes, the amount of sodium in the food is “based on only the edible portion of food, and not bone, seed, shell, or other inedible components.” 21 C.F.R. § 101.12(a)(6).
In ConAgrа’s view, Lilly’s lawsuit is an attempt to force ConAgra into including the sodium content of an inedible portion of the food the shell of the sunflower seed. Because the FDA regulations state that manufacturers need not include the amount of sodium on “inedible components,” ConAgra asserts that Lilly’s suit is expressly preempted by federal law. See 21 U.S.C. § 343-l(a)(5) (no state may “directly or indirectly establish ... any requirement for the labeling of food thаt is not identical” to the federal requirements); Williamson v. Mazda Motor of Am., Inc., - U.S. -,
But ConAgra’s argument simply ignores the fact that while the shells themselves are inedible, the coatings put on top of the shells most certainly are not inedible. To the contrary, the coatings impart flavor and are indisputably intended to be ingested as part of the sunflower seed eating experience. Indeed, these coatings come in flavors such as “Ranch” and “Nacho Cheese” precisely because they are to be consumed before the shell is discarded. The shell is not edible, but the coating is and is intended to be. Federal law requires that the sodium listings include the “edible portion” of a food. For that reason, the portion of the edible coating on the shell must be accounted for in the calculation of the sodium content. The asserted state law requirements that Lilly seeks to impose hеre are thus no different from federal law and not preempted.
ConAgra argues in the alternative that dismissal of the complaint was appropriate because no reasonable cоnsumer would be deceived by its labeling. More specifically, ConAgra argues that since the Nutrition Facts Panel on the sunflower seeds references only the kernels, any reasonable consumer would understand that the sodium listing did not include the amount on the shells.
The district court never reached this issue, and as we have noted before, “ ‘whether a business practice is deceptive will usually be a question of fаct not appropriate for decision on [a motion to dismiss].’ ” Davis v. HSBC Bank Nev., N.A.,
REVERSED and REMANDED.
Notes
. Lilly’s pending motion for judicial notice is denied as moot.
Dissenting Opinion
dissenting:
“A regulation should be construed to give effect to the natural and plain meaning of its words.” Crown Pacific v. Occupational Safety & Health Review Comm’n,
Although we might prefer a regulation that includes the shell’s absorbed salt and to draw a distinction between an edible “coating” and an inedible shell, we are nonetheless bound to apply this unambiguous regulation objectively as it has been written. In my view, it is not currently written to allow such a nuanced distinction. The FDA could, of course, have drafted the regulation in any detail that it wanted (and it could still do so now), making distinctions such as the one favored by the majority today.
Therefore, I respectfully dissent.
. Despite our wishes otherwise, thеre are no page or word limits on federal regulations. In its rulemaking proceeding and in the exercise of its regulatory discretion, the FDA could have easily provided that the amount of sodium for food labeling purposes is "based on only the edible portion of food, and not bone, seed, shell, or other inedible components, but salt added, to the inedible components and intended for consumption must be included." However, it did not.