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From Health Law Daily, August 20, 2013

State regulations controlling amount of slack fill in packaged foods preempted by federal law

By Anthony H. Nguyen, JD

State regulations concerning the amount of slack fill in the preparation, packaging, and sales of fully cooked meat and poultry dishes were preempted because the regulations imposed additional requirements beyond the federal requirements (Del Real v Harris, August 19, 2013, O’Neill, L). The state contended that the manufacturer violated state slack fill regulations when packaging its foods for sale. Although the state argued that the state regulations were only an expansion of language used in the federal laws, the district court disagreed and held that federal law controlled. The manufacturer’s motion for summary judgment and permanent injunctive and declaratory relief was granted.

Background. Del Real, LLC, (Del Real) prepared, packaged, and sold fully cooked meat and poultry dishes in heat and serve containers throughout California. Del Real’s packaging process occurred at a California facility subject to inspection by the United States Department of Agriculture (USDA) under Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act (PPIA). In 2010, the Sonoma County Division of Weights and Measures in California claimed to have measured the amount of slack fill, considered the empty space in a retail package, in several of Del Real’s packaged products, and reported that the packaging amounted to a “clear violation” of the California Fair Packaging and Labeling Act (CFPLA) at Cal. Bus. & Prof. Code secs. 12606 and 12606.2. Subsequently, the California Department of Food and Agriculture conducted its own investigation into the slack fill in two of Del Real’s products, and concluded that the packaging violated the CFPLA.

Del Real challenged CFPLA’s slack fill regulations, arguing the California regulations were preempted as applied to meat and poultry products because of the FMIA and PPIA. Del Real sought summary judgment as well as permanent injunctive and declaratory relief on its preemption claim. The Attorney General of California cross-moved for summary judgment, arguing that (1) the CFPLA was not preempted because it is consistent with FMIA and PPIA; (2) to the extent the CFPLA required additional or different requirements, the CFPLA was inoperative, not preempted; and (3) even if the CFPLA was partially unconstitutional by virtue of preemption, the preempted provisions should be severed from the remainder of the statute.

Statutory provisions. Under 21 U.S.C. sec. 602 (FMIA, applicable to cattle, sheep, swine, or goats) and 21 U.S.C. sec. 451 (PPIA, applicable to poultry) meat and poultry products, respectively, are comprehensively regulated in order to protect “the health and welfare of consumers…by assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged.” In addition, both the FMIA and PPIA authorized the Secretary of Agriculture to prescribe standards of fill of container not inconsistent with any standards established under the Food, Drug, and Cosmetic Act (FDC Act).

However, while language in the FMIA and PPIA authorized the promulgation of regulations pertaining to slack fill in meat and poultry product packaging, the Secretary had not directly addressed slack fill in subsequent regulations. Instead, FMIA regulations at 9 C.F.R. sec. 317.8(a) prohibit meat from being sold in packages “filled [so] as to be misleading.” Likewise, the PPIA’s regulations at 9 C.F.R. sec. 381.129(a) prohibit the sale of any poultry product in “any container that is so made, formed, or filled as to be misleading.”

Other federal statutes do regulate slack fill. The FDC Act and Federal Fair Packaging and Label Act (FFPLA) explicitly prohibit packages from containing “nonfunctional slack fill,” and provide specific examples of the limited circumstances in which slack fill is deemed functional and permissible.

Preemption. In National Meat Association v. Harris, the U.S. Supreme Court held that FMIA’s preemption clause was broad. The high court noted that the clause prevented a state from imposing any additional or different—even if non-conflicting—requirements that fell within the scope of the FMIA. Moreover, in its analysis the Supreme Court noted that following slaughter, an inspector would decide at a post-mortem examination whether and to what extent parts of the suspect animal’s carcass may be processed for human consumption.

In contrast, the district court noted that California’s regulations required immediate euthanization of any “downer animal” and provided that no part of the animal’s carcass could be processed or butchered for food. The district court found that California’s statute, thus, substituted a new regulatory scheme. Although the FMIA and PPIA preemption provisions expressly provided for the exercise of concurrent jurisdiction by states, the provisions did not provide additional interpretation of the phrase “in addition to,” which was used in the regulations. Moreover, the district court noted that the Ninth Circuit had approved of a sister circuit’s holding in Armour & Co. v Ball that in construing identical state and federal language as to the FMIA, only state enforcement of federal misbranding provisions was permitted.

Additionally, the CFPLA prohibited nonfunctional slack fill in packages, a prohibition noted by the court that was nonexistent under federal law. Although Del Real did not point to any guidance or other agency interpretation that expressly permitted packaged meat and poultry products to contain slack fill, and thus, conflict with federal law, the state’s argument would require the court to expand upon the FMIA’s general statutory definition of “misbranded” and “misleading.”

The court also determined that the issue was not preemption of a common law claim, but rather a claim concerning state regulations that added to the regulatory burden of a food manufacturer already subject to the FMIA and PPIA.

The district court thus held that the CFPLA’s slack-fill provisions were requirements in addition to or different than those set forth in the FMIA and PPIA. Consequently, expansion of the existing federal requirements would be impermissible.

Inoperative statute. Alternatively, the state also argued that even if the CFPLA was preempted, the CFPLA contained a provision that would render inoperative sections in the CFPLA that conflict with federal law. Inoperative sections would then be replaced by the language in similar sections of federal law. The district court disagreed noting that the inoperative provision of the CFPLA only referred to the FFLPA, not the FMIA or PPIA. Additionally, even if the conflict concerned the latter acts, the court noted that the Ninth Circuit had rejected said line of reasoning, holding in Rath Packing Co. v. Becker that “[n]o California standard, even if of equal or greater stringency than the federal standard, may be enforced if it is different from the federal standard.”

Moreover, the record demonstrated that Del Real had been threatened with enforcement action under the state slack fill regulations on numerous occasions. According to the court, in effect the state would have Del Real respond to these enforcement actions by proving compliance with federal packaging regulations. This reversed the normal burden of proof and was an attempt to evade the impact of preemption. The CFPLA as it pertained to foods regulated by the FMIA and PPIA was still preempted.

Severability. California also argued that even if the challenged provisions of the CFPLA were preempted, the challenged provisions could be severed from the remainder of the statute. The district court noted it was not necessary to decide severability.

The case number is 1:12-cv-001669 LJO-GSA.

Attorneys: Darren P. Trone (Law Offices of Darren Trone) for Del Real, LLC. Alexandra Robert Gordon, California Department of Justice, Office of the Attorney General, for Kamala D. Harris, Attorney General of California; Edmund G. Brown, Governor of California; and the State of California.

Companies: State of California; Del Real, LLC

MainStory: TopStory CaseDecisions LabelingNews MisbrandingNews FoodNews CaliforniaNews

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