Plaintiffs Mary La Vigne ("Plaintiff La Vigne"), Kristen Hessler ("Plaintiff Hessler"), and Kathleen Hogan ("Plaintiff Hogan") (collectively, "Plaintiffs") filed this proposed class action against the Costco Wholesale Corporation ("Defendant") alleging violations of New York, Pennsylvania, and Massachusetts statutes that prohibit deceptive marketing practices in the sale of consumer goods. Plaintiffs contend that Defendant has engaged in deceptive acts in connection with the marketing and sale of its Kirkland Signature Premium
BACKGROUND
In considering a Rule 12(b)(6) motion, a court is limited to the facts alleged in the complaint and is required to accept those facts as true. See LaFaro v. N.Y. Cardiothoracic Grp., PLLC ,
Defendant is a Washington corporation that, together with its subsidiaries, operates membership warehouses throughout the country offering a range of branded and private-label products, including its house brand, Kirkland Signature. Defendant sells Kirkland Canned Chicken in its membership warehouse stores. (Am. Compl. (ECF No. 1) ¶¶ 9, 12.) The cans are grouped for sale in packages of six 12.5 ounce cans, each slightly more than two inches tall and four inches in diameter. (Id. ¶¶ 12, 14.) Each package is covered by an opaque plastic wrapper. (Id. ¶ 12.) The front of the bulk packaging reads, in large font, "Premium Chunk CHICKEN BREAST." (Id. ) Below, in smaller font, are the phrases "Packed in Water" and "Extra Lean." (Id. ) At the very bottom of this side of the packaging the net weight of the cans is listed as "NET WT 6-12.5 OZ (354g) CANS TOTAL 4.6 LB (2.1kg)." (Id. ) On the reverse side, the bulk packaging includes a Nutrition Facts panel and suggested recipes for the canned chicken. (Id. ¶ 13.) The Nutrition Facts panel includes, in bolded font, the phrase "Nutrition Facts" and immediately below, in smaller, non-bolded font the phrases "Serving Size 2 oz drained (56g)" and "Servings Per Container About 21." (Id. ) The individual labels on each can are not visible in the bulk package prior to purchase, but each can is covered with a front label containing the product name in large font, and immediately to left of the name in smaller font the terms "Packed in Water" and "Extra Lean." (Id. ¶ 14.) At the bottom of each front label the net weight of the individual can is listed as "NET WT 12.5 OZ (354g)." (Id. ) Each can also has a back label listing Nutrition Facts. (Id. ) Immediately beneath the bolded phrase "Nutrition Facts," in smaller, non-bolded font are the phrases "Serving Size 2 oz drained (56g)" and "Servings Per Container About 3.5." (Id. )
Defendant provides members of its warehouse stores with a calculation of the unit price for its Kirkland Canned Chicken,
An opened can of Kirkland Canned Chicken reveals chicken covered by a layer of water. (Id. ¶ 15.) If the consumer drains the 2/3 of a cup of water that the can contains, she is left with between seven and eight ounces of meat, meaning that as much as 44% of the weight of the can's contents is water. (Id. ¶¶ 16-17.) According to the Amended Complaint, the consumer receives little benefit from the water in the can and Defendant does not intend for consumers to use the water, as evidenced by the recipes Defendant includes with each bulk package, which direct consumers to drain the chicken before using it in a dish. (Id. ¶ 20.)
Plaintiff La Vigne, Plaintiff Hessler, and Plaintiff Hogan purchased Kirkland Canned Chicken from Defendant at warehouse locations in New York, Pennsylvania, and Massachusetts, respectively, for between $10.99 and $11.99 per bulk package. (Id. ¶¶ 22, 23, 25.) They allege that they "reasonably believed that they were purchasing a package that contained an adequate amount of chicken in each can because of the misrepresentations on the label, the packaging, the price label on the shelf, the unit pricing, the other materials included with the package, and the size of the can." (Id. ¶ 27.) However, upon using the chicken to prepare meals, each Plaintiff allegedly came to learn that she had received a product with "substantially less chicken than should have been in the can." (Id. ) Plaintiffs admit that they received the amount of chicken indicated under the Nutrition Facts label on the back of the bulk packaging and on the back label of each can, i.e., 42 ounces divided among six cans. (Id. ¶ 1.)
Plaintiffs support their claim that Kirkland Canned Chicken, as labeled, contains too much water and not enough chicken largely through their invocation of federal standards for the marketing of chicken products. Specifically, the Poultry Products Inspection Act ("PPIA"),
Put simply, Plaintiffs allege, on behalf of themselves and all others similarly situated, that Defendant's conduct violates the PPIA and misleads consumers into believing that they are being charged "a reasonable price to pay for chicken" when they buy cans of Kirkland Canned Chicken, even though almost half of the contents of each can is water, and that such conduct constitutes "an unconscionable and deceptive commercial practice" in violation of consumer protection laws in New York, Pennsylvania, and Massachusetts.
STANDARD OF REVIEW
On a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
JUDICIAL NOTICE
As a preliminary matter, the Court must assess whether the document Defendant attached to its pleadings purporting to show that the United States Department of Agriculture's ("USDA's") Food Safety Inspection Service ("FSIS") approved the label at issue in this case ("Defendant's FSIS Form 7234-1") is appropriate to consider for purposes of the instant motion. On a motion to dismiss, courts may "judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b) (c). Matters suitable for judicial notice include matters of public record. Giraldo v. Kessler ,
Defendant contends that the Court may consider Defendant's FSIS Form 7234-1 because "it is a public record and because Plaintiffs' entire case theory depends on Kirkland Canned Chicken's label." (Reply Supp. Def.'s Mot. To Dismiss (ECF No. 21) ("Def.'s Reply") 13.) Plaintiffs assert that the Court's consideration of this document is inappropriate on a motion to dismiss because the Amended Complaint "does not argue that [Defendant] submitted the label for approval" and because this document does not bear "the necessary indicia" that it is "the original or complete submission to the FSIS." (Pls.' Mem. P. & A. Opp'n Def.'s Mot. To Dismiss (ECF No. 20) ("Pls.' Opp'n") 13.) An FSIS Form 7234-1 would ordinarily be considered a matter of public record, and Plaintiffs rely on the images displayed in Defendant's FSIS Form 7234-1 in their Amended Complaint. See Nelson v. MillerCoors, LLC ,
Nevertheless, the Court may presume that the Kirkland Canned Chicken label at issue was approved by the FSIS. The PPIA regulation discussed herein is clear that the Kirkland Canned Chicken label required FSIS pre-approval, as no exemption was applicable due to Defendant's inclusion of American Heart Association claims and a graphic representation of a heart. See discussion infra note 2. The label was actually used on the products offered for sale. (Am. Compl. ¶¶ 11-13.) See Kuenzig v. Kraft Foods, Inc. ,
DISCUSSION
Defendant moves to dismiss on several grounds. First, it argues that Plaintiffs' state law claims are preempted by the PPIA. (Mem. Law Supp. Costco Wholesale Corporation's Mot. To Dismiss (ECF No. 19) ("Def.'s Mem.") 6-10.) Second, it argues that Plaintiffs' claims are precluded to the extent they are predicated on violations of the PPIA, which lacks a private right of action (Def.'s Mem. 10-14.) Finally, Defendant argues that Plaintiffs' claims fail as a matter of law because no reasonable consumer would be misled by Kirkland Canned Chicken's packaging and label.
A. Preemption
Defendant reasons that because Plaintiffs' challenges to the representations on the Kirkland Canned Chicken label fall within the express preemption clause of the PPIA and the FSIS has preapproved the challenged label, Plaintiffs' state law claims are expressly preempted. (Def.'s Mem. 10.) The Court, noting that Plaintiffs also fail to allege a violation of applicable federal law, agrees that Plaintiffs' labeling-related claims are preempted under the facts alleged. In addressing this argument, the Court will begin by describing the relevant statutory and regulatory framework controlling the labeling of poultry products.
1. Regulatory Scheme
Under the PPIA, Congress granted the USDA the authority to regulate the distribution and sale of poultry products shipped in interstate commerce by ensuring, among other things, that poultry products are "properly marked, labeled, and packaged." See
Additionally, canned poultry products are subject to a number of specific labeling requirements. The relevant requirement in this case states: "Canned boned poultry, except poultry within paragraph (c) of this section,
Table II Minimum percent cooked, deboned poultry Maximum percent Product name meat of kind indicated, with skin, fat, and liquid that may be seasoning added1 1. Boned (Kind)-solid 95 5 pack 2. Boned (Kind) 90 10 3. Boned (Kind) with 80 20 broth2 4. Boned (Kind) (-) 50 50 percent broth2 3 1 Liquid may be in the form of, but is not limited to, broth or extractives. 2 Alternatively, product may be prepared from raw boned poultry in combination with cooked boned poultry so long as the product complies with the specified standard. 3 Total amount of liquid added shall be included in the name of the product e.g., "Boned Chicken with 25 percent broth."
Thus, if based on ingredients used in preparation a product contains between 80% and 89% chicken meat and between 11% and 20% added liquid, the product name must specify that the chicken is "with broth." Alternatively, if a product contains between 50% and 79% chicken and between 21% and 50% liquid, the product name must specify the percentage of liquid it contains.
The PPIA contains a preemption clause that expressly preempts states from imposing "[m]arking, labeling, packaging, or ingredient requirements ... in addition to, or different than, those" made pursuant to the PPIA. 21 U.S.C. § 467e. However, states may, consistent with the requirements set forth under the PPIA, exercise concurrent jurisdiction with the USDA to prevent the distribution of poultry products that violate federal laws and regulations.
2. Preemption Analysis
Where a statute expressly preempts state law, courts must determine the extent of that preemption based on "a fair understanding of congressional purpose. " Medtronic, Inc. v. Lohr ,
In regulating the labeling of poultry products, Congress has indicated that for a state law to be preempted it must be (1) a requirement for marking, labeling, packaging, or ingredients, and (2) different or additional to the requirements imposed by the PPIA. See Bates v. Dow Agrosciences LLC ,
The resolution of this issue thus turns on whether Plaintiffs' state law claims amount to labeling or packaging requirements that are different from or in addition to the requirements of the PPIA and its corresponding regulations.
Defendant asserts that because Plaintiffs' state law claims are premised on the allegation that Defendant should have disclosed the percentage of liquid in its canned chicken product to avoid engaging in deceptive marketing practices, they would impose a labeling requirement on Defendant. (Def.'s Mem. 8.) The Court agrees, and Plaintiffs do not argue otherwise. Thus, the first prong of the PPIA preemption clause is satisfied.
In support of its assertion that the labeling requirement Plaintiffs seek to impose is different from or additional to federal requirements, Defendant points to a number of district court decisions that it claims stand for the proposition that "when a poultry product is subject to and passes the pre-approval process by FSIS, a plaintiff's claim under a state statute alleging that the product is deceptive is expressly preempted by the PPIA." (Id. 9.) As stated by one district court,
[B]ecause Defendants' labels comply with the FSIS's nutrition labeling regulations and have passed the FSIS preapproval process (as evidenced by Defendants' use of their labels on the products at issue in this case), the labels are presumptively lawful and not false or misleading. As such, any state law claim based on the contention that the labels are false or misleading is preempted, because such a claim would require Plaintiff to show that the information stated on the labels should have been presented differently (thus, imposing a different and/or additional labeling requirement than those found under the...PPIA).
Kuenzig ,
Plaintiffs claim that their case is distinguishable because "none of these cases alleged that the defendant failed to follow existing USDA regulations and the cases instead sought to impose additional requirements that are not in the regulations and would be at odds with agency policy." (Pls.' Opp'n 11.) Conversely, Plaintiffs argue, Defendant's Kirkland Canned Chicken label clearly violates a "clear, unambiguous, and simple" regulation promulgated under the PPIA applicable to the labeling of canned poultry. (Id. 7). Thus, the instant action merely seeks to impose the same requirements as exist under federal law.
Specifically, Plaintiffs allege that "Kirkland Canned Chicken does not comply with [the requirements of
It is true that there are circumstances under which courts may allow state consumer law claims to proceed even when manufacturers comply with federal labeling laws: "even if ... the labeling meets the floor established by federal regulations, there is nothing to indicate that it could not still be misleading and therefore actionable under the state consumer protection laws." In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig. ,
Plaintiffs argue that because they are merely seeking damages for claims that are premised on a violation of federal law, they should be allowed to proceed. However, based on the plain meaning of "preparation,"
Plaintiffs' assertion that FSIS preapproval should carry no preemptive weight in this case also fails. The Court notes that FSIS Form 7234-1, which must be submitted to the FSIS for all labels that require FSIS preapproval, contains a section where "Product Formula" must be listed by weight and percentage.
Plaintiffs make no allegations to the contrary, nor do they argue that Defendant altered its label or product formula after FSIS preapproval. Instead, Plaintiffs challenge the FSIS review itself because they claim that "any determination by FSIS through the pre-market label review program that Kirkland Canned Chicken meets [the federal standard in
Because Plaintiffs claim that Defendant's label is misleading is based on its presentation of information disclosing the contents of Kirkland Canned Chicken, a jury's finding for Plaintiffs would directly conflict with the FSIS's assessment, in which case it would introduce requirements in addition to or different from those imposed by the PPIA and its corresponding regulations. Thus, while FSIS review and approval may not be an impenetrable barrier to state law deceptive practice claims, under the circumstances presented here, the FSIS review of Kirkland Canned Chicken's label is entitled to preemptive effect. The Court notes further that even if it were to limit the preemptive scope of the FSIS review in this case, the result would not change. Based on the allegations in the Amended Complaint, the success of Plaintiffs' state law claims is dependent on a showing that Defendant should have made disclosures on its label that were affirmatively not required under federal regulations. Therefore, even without considering the FSIS review, Plaintiffs' state law claims impose requirements different from or additional to federal requirements regulating canned chicken and are preempted.
However, preemption does not bar Plaintiffs' state law claims to the extent that they are not based on labeling-related allegations. While Plaintiffs devote much of their attention in the pleadings to Kirkland Canned Chicken's labeling deficiencies, they also incorporate assertions related to "the packaging, the price label on the shelf, the unit pricing [on a separate shelf label showing the price per ounce of the product], the other materials included with the package, and the size of the can," (Am. Compl. ¶ 27.) Insofar as Plaintiffs' challenges to these aspects of Defendant's marketing practices do not implicate the FSIS-approved labeling, they are not preempted and survive at this stage of the Court's analysis.
B. Private Right of Action
Defendant argues that "[b]ecause Plaintiffs' claims are predicated on violations of the labeling regulations promulgated pursuant to the PPIA, those claims thwart Congress's intent in enacting the PPIA, where it purposefully refused to provide a private right of action." (Def. Mem. 11.) As Plaintiffs' labeling-related claims are disposed of on other grounds, the Court need not address the merits of this argument.
C. Failure to State a Claim
Because Plaintiffs' labeling-related claims are preempted, Plaintiffs can bring their state law claims only if their remaining allegations with regard to packaging size and Defendant's use of a shelf label calculating unit price are sufficient to state a claim upon which relief may be granted. Plaintiffs' state law claims ultimately fail on the merits because Plaintiff cannot plausibly state that Defendant's alleged practices rendered Kirkland Canned Chicken's label false or misleading under the applicable standards of consumer protection laws in New York, Pennsylvania, or Massachusetts.
Notes
1. New York General Business Law § 349
Defendant seeks to dismiss Plaintiff La Vigne's claims under N.Y. GBL Section 349 ("Section 359"), which prohibits deceptive business practices, (Def.'s Mem. 15-18),
To state a prima facie claim under Section 349, a plaintiff must allege that the defendant (1) engaged in consumer-oriented conduct; (2) that the conduct was materially misleading; and (3) that the plaintiff suffered injury as a result of the allegedly deceptive act or practice. See, e.g. , City of N.Y. v. Smokes-Spirits.com, Inc. ,
It is undisputed that Plaintiff La Vigne has met the first prong of her Section 349 claim: there is no question that the sale of Kirkland Canned Chicken constituted "consumer-oriented conduct."
As for the "materially misleading" prong, "[t]he New York Court of Appeals has adopted an objective interpretation of 'misleading,' under which the alleged act must be 'likely to mislead a reasonable consumer acting reasonably under the circumstances.' " Cohen v. JP Morgan Chase & Co. ,
According to Plaintiffs, Defendant packages Kirkland Canned Chicken in "large cans that are filled with useless water, conveying the impression that the cans will have a substantial amount of chicken." (Pls.' Opp'n 20.) This problem is allegedly compounded by the fact that Defendant provides a "unit price" label on the shelf that calculates the price for Kirkland Canned Chicken by ounce, but includes water in its calculation. (Am. Compl. ¶ 21.)
This Court and other district courts have found that it is not reasonable for a consumer to expect that they are purchasing a certain amount of product solely because of the size of its packaging. See Stewart v. Riviana Foods Inc. ,
Given the clear disclosure on the bulk packaging and each individual can that the chicken is packed in water, as well as the indication under the Nutrition Facts label that a serving of the product is calculated on a "drained" weight basis, it seems clear that a reasonable consumer would understand a can of Kirkland Canned Chicken to contain both chicken and some amount of water. Nevertheless, Plaintiffs apparently did not rely on the disclosures on the packaging, which they agree accurately convey the contents of the product, in making their purchases. (See id. ¶ 1 (noting that each can "contains slightly more than seven ounces of chicken," in accordance
Having considered Plaintiff La Vigne's allegations in the context of the entire Kirkland Canned Chicken package, including its label, the Court finds as a matter of law that the size of the cans and the unit pricing label would not have misled the reasonable consumer. Accordingly, Plaintiff La Vigne's claims fail.
2. Pennsylvania Unfair Trade Practices and Consumer Protection Law
Next, Defendant seeks to dismiss Plaintiff Hessler's claims under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-3, which prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices," as defined by statute, (Def.'s Mem. 18-22). "What a plaintiff must include in a complaint in order to allege a violation of the UTPCPL depends on which section of the UTPCPL a defendant allegedly violated." Baker v. Family Credit Counseling Corp. ,
73 P.S. § 201-2(4)(v)
Subsection 201-2(4)(v) defines "unfair methods of competition" and "unfair or deceptive acts or practices" to include "[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have." 73 P.S. § 201-2(4)(v). Subsection 201-2(4)(v) applies only to claims of false advertising. See Karlsson v. Fed. Deposit Ins. Corp. ,
The Amended Complaint alleges that the physical packaging and unit pricing accompanying Kirkland Canned Chicken falsely conveyed to Plaintiff Hessler that each can contained a larger amount of chicken than was actually in the can. However, as discussed above, the cans' labels clearly stated that the chicken was packed in water. The back of each label also accurately disclosed the amount of drained chicken product in each can. Plaintiffs provide no basis for ignoring these disclosures, nor do they dispute that they received the amount of chicken indicated on the package labels. Furthermore, they have made no assertion that the unit pricing labels, which are calculated on the basis of a product's net weight, were incorrect with regard to the total contents of a can of Kirkland Canned Chicken. Thus, Plaintiff Hessler fails to allege a misrepresentation in satisfaction of the first element of a Section 202-2(4)(v) claim.
73 P.S. § 201-2(4)(vii)
Subsection 201-2(4)(vii) defines "unfair methods of competition" and "unfair or deceptive acts or practices" to include "[r]epresenting that goods are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another." 73 P.S. § 201-2(4)(vii). Since it is considered fraud-based, a claim under Subsection 201-2(4)(vii) requires a plaintiff to prove all of the elements of common law fraud. See Giangreco v. United States Life Ins. Co. ,
As discussed above, Plaintiff Hessler has not made a convincing allegation that Kirkland Canned Chicken's packaging size and its accompanying unit pricing label amount to a misrepresentation. Any impression that a can of Kirkland Canned Chicken contained a "substantial" amount of chicken, in Plaintiffs' opinions, created by the size of the cans or the unit pricing, was dispelled by Defendant's clear disclosures on the label. Cf. Fisher v. Aetna Life Ins. & Annuity Co. ,
73 P.S. § 201-2(4)(xxi)
Subsection 201-2(4)(xxi) is the catchall provision of the UTPCPL, adding to the list of unfair practices "engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 P.S. § 201-2(4)(xxi). The Third Circuit has noted that "[i]n the wake of an amendment to the UTPCPL in 1996 that expanded the catch-all provision to cover 'deceptive' as well as fraudulent conduct, Pennsylvania law regarding the standard of liability under the UTPCPL catchall is 'in flux.' " Belmont v. MB Inv. Partners Inc. ,
Here, Plaintiff Hessler fails to adequately allege a deceptive act on behalf of Defendant because Defendant's alleged conduct would not be misleading to a reasonable consumer. Accordingly, Plaintiff Hessler's Subsection 201-2(4)(xxi) claim fails.
3. Massachusetts General Law Chapter 93A
Finally, Defendant seeks to dismiss Plaintiff Hogan's claims under Massachusetts General Law, Chapter 93A ("Chapter 93A") on the grounds that the Amended Complaint fails as a matter of law to allege an unfair or deceptive act or practice.
A plaintiff seeking relief under Chapter 93A must prove that the defendant engaged in "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Mass. Gen. Laws Ann. ch. 93A, § 2(a). "Under Chapter 93A, an act or practice is unfair if it falls 'within at least the penumbra of some common-law, statutory, or other established concept of unfairness'; 'is immoral, unethical, oppressive, or unscrupulous'; and 'causes substantial injury to consumers.' " Walsh v. TelTech Sys., Inc. ,
An act or practice is deceptive pursuant to Chapter 93A "if it possesses a tendency to deceive and if it could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have acted," Walsh ,
To successfully bring a Chapter 93A claim, a plaintiff must establish that the defendant's unfair or deceptive act or practice caused an adverse consequence or loss.
Defendant's alleged conduct has not risen to the level of being "unfair" under Massachusetts law because Defendant's FSIS-approved labeling and packaging complied with applicable federal laws and did not misrepresent the contents of Kirkland Canned Chicken. The Court does not find that this amounts to an "immoral, unethical, oppressive, or unscrupulous" trade practice. Likewise, Plaintiffs fail to establish that Kirkland Canned Chicken's packaging and unit pricing label would deceive a reasonable consumer. Accordingly, Plaintiff Hogan's Chapter 93A claims fail.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 18 and to close the case.
SO ORDERED:
Specifically, Plaintiffs allege violations of New York General Business Law § 349, Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-3, and Massachusetts General Law, Chapter 93A. (Id. ¶¶ 41-62).
Plaintiffs make the assertion that Kirkland Canned Chicken label's " 'packed in water' claim is not considered a special statement or claim and, considered alone , likely could be submitted for approval without the USDA ever seeing the actual label." (Pls.' Opp'n 13 (emphasis added).) However, the hypothetical label Plaintiffs describe is not currently before the Court. While the FSIS does not require the submission and pre-approval of certain labels meeting requirements for "generic labels" as defined in
The regulation provides: "No final label may be used on any product unless the label has been submitted for approval to the FSIS Labeling and Program Delivery Staff, accompanied by FSIS Form 7234-1, Application for Approval of Labels, Marking, and Devices, and approved by such staff, except for generically approved labels authorized for use in § 412.2."
Paragraph (c) carves out a separate requirement for canned boned poultry with natural juices, which is not applicable here. See
The FIFRA preemption clause at issue in Bates provided that states could not "impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" under FIFRA. Bates ,
Neither of the federal laws at issue in Wyeth and Segedie included an express preemption clause. See Wyeth v. Levine ,
The word "preparation" is defined as "1a : the action or process of making something ready for use or service." Webster's Third New International Dictionary 1790 (Philip Babcock Gove et al. eds., 2002).
This suggests that the FSIS specifically evaluates labels in the context of what a product contains. Form 7234-1 is available at https://www.fsis.usda.gov/wps/wcm/connect/4aeeca8c-8ba6-4288-a222e6ca8764a9f7/FSIS_7234-1_Approval of Labels.pdf?MOD=AJPERES.
As a threshold matter, the New York Court of Appeals has emphasized that "section 349 is a broad, remedial statute and that the provision creating a private right of action employs expansive language." Casper Sleep, Inc. v. Mitcham ,
The term "net weight" means "[t]he total weight of a thing, after deducting its container, its wrapping, and any other extraneous matter." Black's Law Dictionary 1828 (10th ed. 2014). "Extraneous" means "from outside sources; of, relating to, or involving outside matter." Id. at 706. Thus, the net weight of Kirkland Canned Chicken may be fairly understood as the weight of everything inside the can, including both chicken and water. Plaintiffs do not provide any basis for an alternative understanding of net weight as used here.
Fisher v. Aetna Life Ins. & Annuity Co. and Giangreco v. United States Life Ins. Co. involved both common law fraud claims and fraud-based claims under the UTPCPL. See Fisher v. Aetna Life Ins. & Annuity Co.,