Ninth Circuit Rules State Law Claims Do Not Preclude Federal Clai

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9th Circuit Holds that State Law Claims Identical to Federal Claims are Not Preempted

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Wednesday, July 24, 2024

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Last month the U.S. Circuit Court of Appeals for the 9^th Circuit reversed a lower court decision and held that claims based on the California Sherman Law, the CA equivalent of the federal Food, Drug, and Cosmetic Act (FDCA), were not preempted, even where the relevant provision in the Sherman Law merely incorporated federal labeling standards.
The products at issue were marketed to children under two and contained nutrient content claims in violation of federal regulations which were incorporated into the Sherman law. The relevant federal regulation (21 CFR 101.13(b)(3)) prohibits most nutrient content claims on food products intended for children under the age of two. This and all other federal labeling regulations are incorporated into California law by California Health & Safety Code Section 110100(a).
There is no private right of action to enforce the FDCA and it is enforced by the federal government except in certain delineated instances in which states (but not private parties) are authorized to enforce it (21 USC 337). The lower court had held that this provision impliedly preempted private enforcement of state law claims which were identical to claims alleging that the FDCA had been violated.
The 9^th Circuit reversed this decision, reasoning that while the FDCA prohibits states from establishing nutrition labeling requirements that are “not identical” to the federal standards (21 USC 343-1) and does not permit private enforcement of the FDCA, it nowhere prohibits private enforcement of identical state laws. Although the Court found that it was unambiguous that 21 USC 337 permits private enforcement of identical state laws, it noted that even if there had been “some doubt” as to this interpretation, it would have come to same conclusion based on the presumption that “the historic police powers of the States are not preempted unless that was the clear and manifest purpose of Congress.”