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From Health Law Daily, March 8, 2018

Federal law can’t take a bite out of potato chip suit

By Jeffrey H. Brochin, J.D.

A federal district court in California has denied the motions to dismiss filed by Frito-Lay, Inc., manufacturers of "Salt and Vinegar Flavored Potato Chips" in a class action lawsuit filed by consumers of the product who alleged that its label was misleading under California law as to identification of a flavor additive. Because a question of fact existed as to whether the additive was a chemical or could be considered a natural flavor, the court could not say at the motion stage that the consumer’s argument was preempted by federal food labeling laws (Allred v. Frito-Lay, Inc., March 7, 2018, Sammartino, J.).

Background. Consumers of the potato chip product alleged that it was labeled as only containing natural ingredients but that it was in fact flavored with a chemical called malic acid. The manufacturer moved to dismiss, claiming preemption by the federal Food, Drug and Cosmetic Act (FDC Act) because the product’s label was in compliance with the act. However, due to questions as to the nature of malic acid and the manner to which it should be referenced on a food label, the court could not find preemption at the motion stage of the lawsuit and therefore denied the manufacturer’s motion to dismiss.

Nutrition Labeling and Education Act. The court noted that pursuant to the Supremacy Clause of the U.S. Constitution, federal law preempts state law when: (1) Congress enacts a statute that explicitly preempts state law; (2) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field; or (3) state law actually conflicts with federal law. The FDC Act as amended by the Nutrition Labeling and Education Act (NLEA), contains an express preemption provision making clear that state laws that impose labeling requirements that are not identical to FDA mandates are preempted. Accordingly, the court found that the consumers’ claims need not fail on preemption grounds if the requirements they sought to impose were either identical to those imposed by the FDC Act and the NLEA amendments, or did not involve claims or labeling information of the sort described in the federal regulations. The salient issue then, was one of whether the consumers sought to impose requirements that were stricter than those of the FDC Act, in which case the claims would be preempted.

The nature of ‘malic acid.’ The consumers alleged that the label misleadingly identified "malic acid" by its generic name, when it should have referred to the specific non-generic name of the ingredient. They argued that the manufacturer flavored the product with an industrial chemical called d-l-malic acid and was therefore required to disclose this on the product label. The manufacturer countered that "malic acid" is the "common name" for all forms of malic acid, and the label therefore had to disclose it as such. They further argued that the consumers’ claims that more specificity in the labeling was somehow necessary or appropriate was contrary to and plainly preempted by federal law.

Common versus specific naming. Under 21 C.F.R § 101.4(a)(1), a food is misbranded if its label does not bear the common or usual name of the food or the common or usual name of each ingredient that makes up the food. However, the regulation also states that the name of an ingredient shall be a specific name and not a collective (generic name). The manufacturer argued that "malic acid" is the common name for 1–hydroxy–1, 2–ethanedicarboxylic acid. The regulation also identified two forms of malic acid: L-malic acid, which occurs naturally in various foods and DL-malic acid, which does not. The consumers argued that the manufacturer was required to refer to the ingredient by the "specific" name "d-l-malic acid."

No preemption at this stage. The court found that what was clear was that there are two forms of malic acid, and while the consumers argued that d-l malic acid is the specific name for one type of malic acid, the regulation on malic acid, states that the "ingredients" (plural) are used in food, therefore, it was plausible that DL-malic and L-malic acid were specific names of the collective, common name malic acid. As a result, the court could not say at the motion stage that the consumers’ argument was preempted by federal law, and it therefore denied the manufacturer’s motion to dismiss.

The case is No. 3:17-cv-01345-JLS-BGS.

Attorneys: David Elliot (The Elliott Law Firm) for Barry Allred and Mandy C. Allred. Andrew S. Tulumello (Gibson, Dunn & Crutcher LLP) for Frito-Lay North America, Inc. and Frito-Lay, Inc.

Companies: Frito-Lay North America, Inc.; Frito-Lay, Inc.

MainStory: TopStory CaseDecisions FDCActNews FoodNews FoodStandardsNews LabelingNews CaliforniaNews

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