Various consumers in seven states brought class-action lawsuits with state and federal claims against Anheuser-Busch Companies, LLC (“Anheuser-Busch”), alleging that Anheuser-Busch intentionally overstates the alcohol content
Anheuser-Busch moved to dismiss on the ground that any alleged misstatement of alcohol content, even if intentional, fell within a tolerance of 0.3 percent created by a federal beverage-labeling regulation that has been incorporated into the relevant states’ law. The district court agreed. After observing that the plaintiffs had conceded that all of their claims would fail if Anheuser-Buseh’s alleged misstatements did not run afoul of federal regulations, the court dismissed the plaintiffs’ complaint. For the reasons given below, we affirm the judgment of the district court.
I
Anheuser-Busch brews various malt beverages, among them Budweiser, Bud Ice, Bud Light Platinum, Michelob, Michelob Ultra, Hurricane High Gravity Lager, King Cobra, Busch Ice, Natural Ice, Black Crown, and Bud Light Lime. The plaintiffs — individuals who either consume or consumed one or more of these malt beverages — claim that Anheuser-Busch employs sophisticated process-control technology that enables it to precisely measure and control the alcohol content of its malt beverages. According to the plaintiffs, Anheuser-Busch does not use this technology to produce beverages that reflect the alcohol-by-volume content listed on byproducts’ labels. On the contrary, the complaint alleges that Anheuser-Busch “uses its precise knowledge of the alcohol content of its products to deceive consumers.” ■
The plaintiffs explain that Anheuser-Busch adds extra water to its products to dilute the alcohol content to levels below those represented on product labels. As a result, say the plaintiffs, Anheuser-Busch is able to save money on production costs and gain a competitive advantage over other brewers, while intentionally misrepresenting the quality of its products to consumers. The plaintiffs claim that they purchased malt beverages in reliance on the misrepresentations on Anheuser-Busch’s product labels, would not have made those purchases if they had known that the alcohol content was in fact lower than the amount stated on the labels, and ultimately received beer with less value than the beer that Anheuser-Busch promised on its labels.
The plaintiffs sought redress for the harm they allegedly suffered by bringing actions in federal district court in the Northern District of California, the District of Colorado, the Middle District of Florida, the District of New Jersey, the Northern District of Ohio, the Eastern District of Pennsylvania, and the Northern District of Texas. The Judicial Panel on Multidistrict Litigation consolidated the cases into one litigation, which it assigned to the Northern District of Ohio. The plaintiffs then filed an amended complaint, seeking certification of classes of plaintiffs residing in each of the seven states. Each class of plaintiffs sought relief under state consumer-protection and — with the exception of the Florida plaintiffs — warranty law, as well as Section 109(d) of the federal Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301-2312, which creates a federal cause of action for the violation of a warranty implied by state law, see id. §§ 2301(7), 2310(d)(1)(B). The plaintiffs also proposed a new nationwide class comprising residents of all forty-eight contiguous states, which alleged violations
Anheuser-Busch moved to dismiss on the ground that the plaintiffs failed to state a claim upon which the district court could grant relief. Anheuser-Busch argued that because the plaintiffs never alleged that it had overreported the alcohol content in its malt beverages by more than 0.3 percent, Anheuser-Busch fully complied with state and federal regulations governing alcoholic beverages, thereby precluding liability under state consumer-protection law. In particular, Anheuser-Busch pointed out that a federal regulation codified at 27 C.F.R. § 7.71 explicitly allows the alcohol content of the malt beverages in question to diverge by up to 0.3 percent from the alcohol content stated on the beverages’ labels. See 27 C.F.R. § 7.71(c)(1). And although states may impose their own labeling regulations with no tolerance or a tolerance more forgiving than that set forth in § 7.71, see id. § 7.71(a), each of the eight states whose law is in question has adopted that federal tolerance of 0.3 percent into state law. Drawing on the principle of statutory construction “that the specific governs the general,” Morales v. Trans World Airlines, Inc.,
After reviewing two additional written submissions from each party and hearing oral argument, the district court granted Anheuser-Busch’s motion to dismiss. The court first observed that “Defendant has asserted, and Plaintiffs have not contested, that if the Court finds that Anheuser-Busch’s alleged over-reporting of alcohol content is permitted under 27 C.F.R. § 7.71(c), this action must be dismissed.” The court explained that “Plaintiffs have not disputed this premise in aujr of their briefing, and Plaintiffs’ counsel explicitly conceded this point at oral argument.” The court then turned to § 7.71 and examined the plaintiffs’ contention that the plain language of the regulation prohibits An-heuser-Busch from intentionally targeting the lower end of the statutory tolerance. Finding no indication of an exception for intentional variations in the text or structure of the regulation, the court rejected the plaintiffs’ “intent-based” reading of the regulation and concluded that the “protection afforded by § 7.71(c)(1) is provided without regard to the cause of any deviation or variation, and without regard to the intention behind any misstatement of alcohol content within the defined tolerance range.” Having heard no argument from the plaintiffs that their state-law claims and corresponding MMWA claims should not fall along -with their interpretation of § 7.71, the court granted Anheuser-Busch’s motion to dismiss.
The plaintiffs appealed and now argue that the district court erred when it failed to adopt an intent-based reading of § 7.71. In the alternative, they argue that because Anheuser-Busch’s- compliance with the state and federal regulations does not entitle it to immunity from state consumer-
II
We review de novo a district court’s decision granting a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Ass’n of Cleveland Fire Fighters v. City of Cleveland,
Ill
In the wake of the ratification of the Twenty-First Amendment, Congress enacted the Federal Alcohol Administration Act (“FAAA” or the “Act”), Pub.L. No. 74-409, 49 Stat. 977 (1935) (codified as amended at 27 U.S.C. §§ 201-219a), which, among other things, authorized the Federal Alcohol Administration (“FAA”) to eliminate “unfair competition” in the production and sale of alcoholic beverages. Id. § 5,
In 1936, the FAA adopted a general provision, now found at 27 C.F.R. § 7.29(a)(1), that forbids any statement on a malt-beverage label that is “false or un
Consistent with the states’ “broad authority” to regulate the sale of alcoholic beverages within their borders, Sam & Ali, Inc. v. Ohio Dep’t of Liquor Control,
Because each state has in some way incorporated § 7.71 into its own alcohol-labeling regime, Anheuser-Busch moved to dismiss and argued to the district court that the tolerance created by § 7.71(c)(1) protects the manufacturer from state-law liability for any deviations in alcohol content within that tolerance, intentional or not. The plaintiffs, on the other hand, argued for an intent-based reading of § 7.71 that would not protect producers who intentionally sell malt beverages with less alcohol than is stated on the beverage label. The district court agreed with An-heuser-Busch. The court emphasized that “courts must, in the first instance, focus on the plain wording of the provision at issue.” Because nothing in the text of § 7.71 distinguishes intentional from unintentional deviations in alcohol content on beverage labels, the court held that the language of § 7.71(c)(1) creates a safe harbor for any brewer who does not exceed the
On appeal, the plaintiffs raise two arguments in support of their assertion that “the most reasonable construction of Section 7.71 is that the tolerance language allows an unintentional variance of no more than .3% from the claimed level while intentional dishonesty about the alcohol level remains prohibited.” Appellant Br. 35. First, they argue that the word “tolerance” is a “technical or specialized word” that permits only unintentional variations. Id. at 38. Second, the plaintiffs argue that the district court’s interpretation of § 7.71 is inconsistent with the context and purpose of the regulatory framework created by the FAA, ATF, and TTB and of that framework’s adoption into state law. After examining the plain text of § 7.71, we contend with each argument in turn.
A
We begin our analysis with the text of 27 C.F.R. § 7.71. See Milner v. Dep’t of Navy,
For malt beverages containing 0.5 percent or more alcohol by volume, a tolerance of 0.3 percent will be permitted, either above or below the stated percentage of alcohol. Any malt beverage which is labeled as containing 0.5 percent or more alcohol by volume may not contain less than 0.5 percent alcohol by volume, regardless of any tolerance.
Id. § 7.71(c)(1).
Nothing in the language of § 7.71(c)(1) distinguishes intentional from unintentional variances within the applicable tolerance of 0.3 percent. The key word in § 7.71(c)(1) — “tolerance”—strongly suggests that the ATF intended no such distinction. The regulations do not define the word “tolerance,” and “[i]n the absence of such a definition, [courts] construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer,
In short, nothing in the text of § 7.71 implies any distinction based on the motive of the manufacturer.
B
The plaintiffs counter that the word “tolerance” does not bear its ordinary meaning in the context of the § 7.71. They argue that in light of the “high-tech manufacturing setting” in which “the alcohol content of beer is controlled using sophists cated equipment and statistical process control methods,” the word “tolerance” is a term of art with a specialized meaning. Appellant Br. 38. According to the plaintiffs, that specialized meaning does take the intent of a producer into account and allows for a “deviation from a standard” only when that deviation is unintentional.
Finding no evidence for this specialized meaning in the text of the FAAA or TTB regulations, the plaintiffs point to a guidebook on measuring devices entitled “Handbook 44,” which is published by the National Institute of Standards and Technology (“NIST”), an organization within the Department of Commerce that Congress has authorized to develop “methods for testing materials, mechanisms, structures, equipment, and systems, including those used by the Federal Government.” 15 U.S.C. § 272(b)(8); see also Nat’l Inst. of Standards & Tech., Handbook 44, at 1 (2014) (“Handbook 44”). In a section entitled “Tolerances for Commercial Equipment,” Handbook 44 provides:
Tolerances are primarily accuracy criteria for use by the regulatory official. However, when equipment is being adjusted for accuracy, either initially or following repair or official rejection, the objective should be to adjust as closely as practicable to zero error. Equipment owners should not take advantage of tolerances by deliberately adjusting their equipment to have a value, -or to give performance, at or close to the tolerance limit. Nor should the repair or service personnel bring equipment merely within tolerance range when it is possible to adjust closer to zero error.
Handbook 44 at A-4 (emphasis added).
As further evidence for their specialized reading of the word “tolerance,” the plaintiffs point to two cases applying California law, which incorporates Handbook 44. See Cal. Bus. & Prof. Code § 12107. Even though a California statute considers odometers to be “[cjorrect” if their readings stay within the bounds of a four-percent tolerance created by the NIST, see id. § 12500(c), the two courts relied on Handbook 44’s exhortation that “[ejquipment owners should not take advantage of tolerances” to hold that automobile manu-
None of this explains why Handbook 44 or the two cases applying its standards to California law is relevant to the question of what the ATF intended when it used the word “tolerance” in § 7.71. The district court found Handbook 44 inapplicable— and the plaintiffs’ invocation of California law irrelevant — on the ground that the NIST does not regulate “alcoholic beverages, or the[ir] labeling.” We agree. The NIST standards govern “weights and measures and weighing and measuring devices,” not products or their labels as does § 7.71. Handbook 44 at 1; see also 15 U.S.C. § 272(b)(6) (authorizing the NIST to “assist industry in the development of measurements, measurement methods, and basic measurement technology”). And nothing in Title 27 of the Code of Federal Regulations references Handbook 44, nor is there any other evidence that the ATF considered NIST standards when drafting § 7.71.
The plaintiffs urge that Handbook 44 is relevant to this case because each of the eight states has incorporated NIST standards into state law. On their view, the states’ adoption of Handbook 44 “provides critical insight into the States’ view of the intentional abuse of ‘tolerances,’ and shows that the States did not intend to exempt such conduct from scrutiny.” Appellant Br. 23. But the plaintiffs do not point to any evidence that the legislatures or administrative agencies of any of the eight states intended the NIST standards to apply outside of the context for which they were expressly adopted. Indeed, the plaintiffs themselves implied quite the opposite when they informed the district court that “four of the states at issue in this case (California, Missouri, New Jersey, and Texas) have explicitly adopted the same labeling requirements for claims, of alcohol content as has the TTB.” (emphasis added).
Both odometer litigations involved the application of NIST standards to an NIST tolerance established specifically for odometers and explicitly adopted into California law governing weights and measures. See Cal. Bus. & Prof. Code § 12107. In this case, by contrast, the applicable tolerance derives from an entirely separate regulation enacted by a distinct regulatory body, the ATF. In this context, the states’ decision to embrace the NIST’s general guidelines, which include an admonition that equipment owners “should not” take advantage of tolerance levels for measuring devices, Handbook 44 at A-4 (emphasis added), is less relevant than their adoption of § 7.71’s specific alcohol-labeling regulation, under which “a tolerance of 0.3 percent will be permitted,” 27 C.F.R. § 7.71(c)(1) (emphasis added). Just as “[e]vils in the same field” may “requir[e] different remedies,” Williamson v. Lee Optical of Okla., Inc.,
The plaintiffs’ reliance on the NIST Handbook reveals an additional flaw in their assertion that the word “tolerance” necessarily applies to unintentional variances only. If this is what “tolerance” means, the NIST would not have had any reason to separately counsel equipment
Still wines may contain not more than 0.392 gram of carbon dioxide per 100 milliliters of wine; except that a tolerance to this maximum limitation, not to exceed 0.009 gram of carbon dioxide per 100 milliliters of wine, will be allowed where the [excess] amount of carbon dioxide ... was due to mechanical variations which could not be completely controlled under good commercial practices. Such tolerance will not be allowed where it is found that the limitation ... is continuously or intentionally exceeded.
Ibid, (emphasis added). Likewise, 27 C.F.R. § 25.142 denies manufacturers the benefit of a tolerance that concerns the volume of beer in bottles “when filling is not conducted in compliance with good commercial practice.” Id. § 25.142(d). And under 27 C.F.R. § 4.37, a tolerance for discrepancies regarding the volume of wine in a bottle “shall be allowed” for those discrepancies that occur “due exclusively to errors in measuring which occur in filling conducted in compliance with good commercial practice,” id. § 4.37(d)(1), or “due exclusively to differences in the capacity of containers, resulting solely from unavoidable difficulties in manufacturing such containers so as to be of uniform capacity,” id. § 4.37(d)(2) (emphasis added).
That the ATF believed it necessary to explicitly include intent-based exceptions when using the term “tolerance” in certain provisions supports the conclusion that the ATF did not understand that term to apply only to unintentional variances. See Russello v. United States,
The plaintiffs draw on the TTB’s and ATF’s own publications to make one last argument in favor of giving the word “tolerance” a “technical gloss” that allows only unintentional variances. Appellant Br. 38. They point out that the ATF designed the tolerance in § 7.71(c)(1) to allow for “normal variations in the production of beer, ale, and so forth brought about by differences in raw materials and brewing practices.” Id. at 42 (quoting 58 Fed.Reg. at 21,229). And in ATF Ruling 80-3, the ATF wrote that the intent of tolerances related to caloric, carbohydrate, protein, and fat labeling on malt beverages “is to provide for normal production and analytical variables while continuing to ensure that the labeling is not misleading to the
The difficulty with the plaintiffs’ argument is that even if the tolerance created by § 7.71(c)(1) was designed to allow for “normal variations in the production” of malt beverages, nothing in that statement of policy evinces an intent to disallow intentional variations. As we have explained, the ATF’s inclusion of an intent-based exception to other tolerances in related regulations strongly supports the opposite conclusion. Nor does TTB Ruling 2013-2 help the plaintiffs. Ruling 2013-2, which regulates how alcohol content must appear in voluntary “serving facts” labels that list caloric and fat content and other information on the back of wine, distilled-spirit, and malt-beverage containers, explicitly allows malt-beverage manufacturers the same tolerance that is set forth in § 7.71(c).
Given the structural difficulties that accompany the plaintiffs’ reading of the word “tolerance,” as well as the lack of any evidence that the ATF or state legislatures or regulators meant anything other than “the allowable deviation from a standard” when they used the word “tolerance,” we conclude that the word bears its ordinary meaning.
C
Having failed to show that the word “tolerance” is a term of art, the plaintiffs argue that “any decision about the meaning of Section 7.71 should [be] made in light of the purposes of the enabling statute [that] the Section was enacted to implement.” Id. at 36. According to the plaintiffs, Congress designed the FAAA to “prevent consumer deception.” Id. at 37. To that end, Congress prohibited misleading labels on alcoholic beverages and authorized the Secretary of the Treasury to explicate and enforce the prohibition. See 27 U.S.C. § 205(e). The importance of that policy goal, the plaintiffs claim, is evidenced in the FAA’s adoption of a “broad prohibition [against] any statement on an alcoholic beverage label which is ‘false or untrue in any particular.’ ” Appellant Br. 37 (quoting 27 C.F.R. § 7.29(a)(1)). The plaintiffs suggest that an interpretation of § 7.71(c) that ignores the intent behind a deviation from the alcohol-by-volume content listed on a malt-beverage label would subvert this core purpose of the FAAA and § 7.29(a)(1) and should therefore be avoided.
The plaintiffs are correct that “a court should not interpret each word in a statute with blinders on, refusing to look at the word’s function within the broader statutory context.” Id. at 36 (quoting Abramski v. United States, — U.S. -,
Moreover, interpreting § 7.71(c) according to its plain meaning would not, as the plaintiffs contend, conflict with the purpose of the regulatory scheme as a whole. We can easily reconcile § 7.29(a)’s general prohibition against false or misleading statements with § 7.71(c)(l)’s later-enacted, specific allowance of a tolerance of 0.3 percent by concluding that the ATF determined that such small variances are not misleading to consumers (and therefore not deceptive). The ATF clearly paid close attention to consumer expectations when devising tolerances. For example, the ATF eliminated any tolerance for understatements of alcohol content on beverages labeled as “low alcohol” on the ground that “it would be misleading to consumers to purchase product containing more than the labeled content of alcohol when the low alcohol content may be a primary reason for the selection of a particular malt beverage.” 58 Fed.Reg. at 21,230. In this context, we assume that the ATF concluded that the relatively minor variation specified in Paragraph (c)(1) would not meaningfully interfere with consumer expectations.
What is more, 27 C.F.R. § 7.29(a)’s prohibition against “[a]ny statement ... that, irrespective of falsity ... tends to create a misleading impression,” 27 C.F.R. § 7.29(a)(1), does not obviously favor an intent-based reading of § 7.71(c) since the plaintiffs fail to explain why the producer’s intent would have anything to do with whether a label that does not reflect the correct alcohol content in a malt beverage “tends to create a misleading impression” to consumers. In other words, a customer who is “misled” by a beverage label that overstates the alcohol-by-volume content of the beverage would be misled irrespective of the producer’s intent.
D
In this case, the plain language of § 7.71 suggests that the relevant tolerance applies irrespective of the producer’s intent. Nothing in the structure or content of the FAAA or other TTB regulations requires otherwise. Cf. Amoco Prod. Co. v. Village of Gambell,
IV
Having concluded that the district court' properly held that Anheuser-Busch did not violate § 7.71, we must ask what this defeat means for the plaintiffs’ claims. The plaintiffs do not claim that the FAAA or § 7.71 creates a private right of action that will redress the harm that the plaintiffs allegedly suffered. Rather, the plaintiffs ground their claims in state consumer-protection law and the state law of express and implied warranty.
The regulations that the TTB administers are certainly relevant to those claims. Although states may impose labeling requirements that vary from the requirements set forth in § 7.71, see 27 C.F.R. § 7.71(a); cf. Bronco Wine Co. v. Jolly,
On appeal, the plaintiffs argue that they can meet these requirements. They argue that “compliance with the TTB regulation does not entitle [Anheuser-Busch] to a ‘safe harbor’ defense under state law,” Appellant Br. 28, because each state’s safe harbor “requir[es] clear indication that the State has affirmatively authorized particular conduct before [creating] immunity” from state consumer-protection law, id. at 29. As for the warranty claims, the plaintiffs draw upon the proposition that “absent any indication of legislative intent that one statutory scheme displace^] the other, both statutes apply” and argue no such intent to displace state warranty law exists. Id. at 26. Although we agree that the question of whether compliance with § 7.71 protects Anheuser-Busch from more general state consumer-protection or warranty law is a question of state law, we have no occasion to analyze the state safe-harbor provisions or consider whether state labeling regulations preclude state consumer-protection or warranty law because the plaintiffs failed to properly raise this argument in the district court.
The district court dismissed the plaintiffs’ action after holding that § 7.71 does not prohibit the behavior in which Anheu-ser-Busch is allegedly involved. The court reasoned that because each of the eight
A
The question of whether a litigant has forfeited an argument is a mixed question of law and fact. Karam v. Sagemark Consulting, Inc.,
We “have not ‘articulated precisely' what a party must do (or how much it must say) in the district court to ‘raise’ an argument.” United States v. Huntington Nat’l Bank,
Throughout the course of the litigation in the district court, Anheuser-Busch unambiguously took the position that if the district court were to conclude that § 7.71 permits Anheuser-Busch to target the lower end of the tolerance set forth in Paragraph (c)(1), the rule that specific provisions take precedence over more general ones required the court to dismiss all of the plaintiffs’ claims. In a memorandum of law accompanying its motion to dismiss, Anheuser-Busch argued that “Plaintiffs’ general consumer protection and warranty claims conflict with the specific regulations that govern beer labels that permit a 0.3% variance. This conflict must be resolved in favor of the regulations specific to alcohol content labeling.... Any contrary holding is proscribed by this basic tenet of statutory construction.” Likewise, in its reply to the plaintiffs’ memorandum in opposition, Anheuser-Busch argued that the “entire Complaint should be dismissed” for the “globally dispositive reaso[n]” that “[An-heuser-Busch’s] labeling complies with
If the plaintiffs felt otherwise, one would have expected them to vigorously contest Anheuser-Busch’s claims by informing the district court of their disagreement. But the plaintiffs never did so in any of their written submissions to the district court. If anything, the plaintiffs’ briefing suggested that they agreed with Anheuser-Busch’s position: In their response to An-heuser-Busch’s motion to dismiss, the plaintiffs opened by observing that “the relationship between [§ 7.29(a)(1) and § 7.71] is a key issue in this case.” Later in that response, the plaintiffs wrote that “[t]he principal issue to be resolved in this motion is the proper construction of [§ 7.71]; in particular, what is the meaning to be assigned the word ‘tolerance’ in the context of this provision and the overall regulatory scheme.”
To be sure, the plaintiffs did argue that they sufficiently pleaded state-law claims and stated that their warranty claims created a matter for a jury. But given that Anheuser-Busch raised a litany of arguments that the plaintiffs’ state-law claims would fail for a variety of reasons even if § 7.71 were to forbid intentionally targeting the lower end of the regulatory tolerance, the district court reasonably assumed that the relevance of the plaintiffs’ arguments about those claims necessarily depended upon an antecedent ruling that Anheuser-Busch violated § 7.71. Nothing alerted Anheuser-Busch or the district court that the plaintiffs meant anything else, even after Anheuser-Busch so explicitly stated that “Plaintiffs’ counsel conceded ... that 27 C.F.R. § 7.71 governs disposition of these cases.” In other words, what was missing from the plaintiffs’ briefing was the argument that they make on appeal, namely, that even if An-heuser-Busch complied with § 7.71, the plaintiffs’ state-law and MMWA claims would survive.
The plaintiffs came close to making this argument twice. First, in their memorandum in opposition to Anheuser-Buseh’s motion for summary judgment, the plaintiffs argued that “[a]t least two courts have relied on the NIST Handbook to conclude that intentional manipulation or misstatement, even if within a permitted ‘tolerance,’ is not allowed.” Second, in a footnote in their supplemental briefing, the plaintiffs wrote: “Even assuming arguen-do that Section 7.71(c) permits [Anheuser-Busch] to intentionally label its products 0.3% above the actual ABV, that would just mean that the labels are not ‘false’ within that specific regulation.” The plaintiffs contend on appeal that these excerpts clearly show that they argued that their claims would survive an intent-neutral interpretation of § 7.71.
Context reveals that the plaintiffs included the first statement — which references the NIST Handbook — as part of their argument for an intent-based reading of the regulation, not as part of an argument that their state-law claims would survive irrespective of how the court might interpret § 7.71. That first statement is taken from a part of the plaintiffs’ memorandum in opposition that argued that the word “tolerance” in § 7.71(c) is a term of art that does not provide safe harbor to brewers where the variance from the stated alcohol content is intentional.
The second statement — from the plaintiffs’ supplemental briefing — is more
Where, as here, a litigant has failed to clearly raise an argument in the district court, we have concluded that the argument is forfeited. See, e.g., Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway,
B
The plaintiffs argue that we should nevertheless consider the argument that their state-law claims survive our construction of § 7.71 because the “ ‘rule’ against appellate consideration of arguments presented for the first time on appeal is not jurisdictional.” Appellant Reply Br. 7. The plaintiffs are correct that our prohibition against raising new arguments on appeal in civil cases is not without exception. In re Morris,
As the plaintiffs point out, we have invoked the Pinney Dock exception and found “extraordinary circumstances” where the question “present[ed] a purely legal issue not available ... below, and failure to consider it could result in a miscarriage of justice.” United States v. Real Property Known & Numbered as 429 S. Main St.,
In POM Wonderful, the Supreme Court considered whether Coca-Cola’s compliance with regulations adopted pursuant to the Federal Food, Drug, and Comestic Act (“FDCA”) — which forbids the misbranding of food, 21 U.S.C. §§ 331(a), 343 — prevented POM Wonderful from pursuing a claim against Coca-Cola under Section 43 of the Lanham Act — which authorizes one competitor to sue another if the plaintiff competitor alleges unfair competition arising from the defendant’s misleading product descriptions, 15 U.S.C. § 1125(a). Notably, the Court expressly rejected Coca Cola’s argument that compliance with the specific regulations of the FDCA precludes challenges under the Lanham Act. See POM Wonderful,
On the plaintiffs’ view, the methodology in POM Wonderful is obviously inconsistent with the district court’s conclusion that, “[hjaving adopted the tolerance set forth in 27 C.F.R. § 7.71(c), th[e] states [whose law is at issue] cannot enforce the general legislation that would prohibit conduct specifically permitted under this tolerance provision.” The plaintiffs contend that because the Supreme Court decided POM Wonderful only after the district court ruled on Anheuser-Busch’s motion to dismiss, and because POM Wonderful is inconsistent with the district court’s reasoning, “extraordinary circumstances” exist that should excuse their failure to properly raise their forfeited argument. But because ample appellate authority would have supported the plaintiffs’ forfeited argument even before the Supreme Court decided POM Wonderful, and because POM Wonderful’s relevance to this case is merely speculative, we disagree.
i
In cases where we have excused a litigant’s failure to raise “a purely legal issue not available ... below,” 429 S. Main St.,
Interpretive rules are not binding law. Chickasaw Nation v. United States,
While the plaintiffs chose not to invoke any of these precedents in the district court, they are not correct that they could not have done so without POM Wonderful.
ii
This leaves the plaintiffs to argue that even if they could have drawn on other principles of interpretation, POM Wonderful announced a new canon of construction that would have been determinative in their case. As the plaintiffs put it, “this appeal should be decided based on the law as it is now understood (in light of POM Wonderful), not as.it was tmderstood at the time of the District. Court’s order and judgment.” Appellant Reply Br. 11; But even if we assume that the interpretive principle in POM Wonderful was in fact novel, the plaintiffs’ argument is not relevant here for yet another reason: POM Wonderful is a decision that instructs courts about how to interpret the interaction between the Lanham Act and the FDCA, two federal statutes. While we must pay close attention to the interpretive principles of the Supreme Court when interpreting federal law, those principles are relevant to the plaintiffs’ state-law and derivative MMWA claims only if the relevant state courts would find them persuasive as a matter of state law.
It makes sense that state and federal courts interpreting federal law should look to federal interpretive practices for insight into congressional intent. The Supreme Court, which exercises the authority to correct any errors in how lower courts apply federal law, seeks to ensure “that
Since all of the plaintiffs’ claims in this case depend upon whether state beverage-labeling law precludes state consumer-protection and warranty law, the interpretive methodology set forth in POM Wonderful would be relevant only insofar as the relevant state courts would find the case persuasive as a matter of state law. See Batterton v. Tex. Gen. Land Office,
This reality has two implications for the plaintiffs’ forfeited argument, neither of which militates in favor of considering that argument on appeal. Since state courts may employ interpretive principles that diverge from federal ones, the plaintiffs’ contention that POM Wonderful “changed the law” is speculative. The plaintiffs’ argument is particularly questionable since some state high courts have employed interpretive principles that are arguably at odds with the plaintiffs’ reading of POM Wonderful. See, e.g., Maggio v. Fla. Dep’t of Labor & Emp’t Sec.,
The upshot of this is that the plaintiffs could have drawn on state appellate authority to argue that Anheuser-Busch’s compliance with § 7.71 does not preclude particular state-law consumer-protection
iii
POM Wonderful did not change the law, except insofar as it determined how courts must apply the Lanham Act as it interacts with the FDCA. Nothing prevented the plaintiffs from raising in the district court the very argument that they seek to make for the first time on appeal. On the contrary, ample appellate authority would have enabled them to make that argument. Accordingly, no “extraordinary circumstances” exist that would warrant excusing the plaintiffs’ failure to properly raise their argument in the district court. We are not a “‘second shot’ forum, a forum where secondary, back-up theories may be minted for the first time.” Estate of Quirk v. Comm’r,
V
We conclude that the district court properly determined that nothing in the FAAA or corresponding regulations prohibits An-heuser-Busch from targeting the lower end of the tolerance specified in 27 C.F.R. § 7.71(c)(1). Because the plaintiffs forfeited the argument that their claims survive such an interpretation of § 7.71, we have no occasion to consider the merits of that argument. Accordingly, the judgment of the district court is AFFIRMED.