All “Cluck” and No Bite? Preemption and Challenges to Poultry and Meat Labels | Patterson Belknap Webb & Tyler LLP
Preemption is a familiar battlefield for litigants challenging or defending advertising claims made on the labels of federally regulated products. Plaintiffs bringing claims under state law must contend with the fact that federal laws often contain preemption clauses that prohibit states from imposing requirements different from or in addition to those found in federal law. We have previously covered cases dealing with preemption in the context of the federal Food, Drug, and Cosmetic Act (FDCA) here and here.
But not all foods are regulated under the familiar FDCA framework. This post examines recent cases that have analyzed preemption as it relates to the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA), which create the regulatory framework governing the labeling of meat and poultry products for consumption. These statutes establish rigorous pre-approval requirements for product labels, meaning that the U.S. Department of Agriculture (USDA) must review and approve any labeling statement for such products before it can be used in the marketplace. The FDCA imposes a similar pre-approval requirement for drug labels; however, labels for food and beverage products regulated by the FDA (i.e., foods other than meat or poultry products) do not require advance approval. This creates an interesting asymmetry: due to the pre-approval requirement, courts have often concluded that false-advertising challenges to labeling of USDA-regulated food products are preempted, even when they might conclude otherwise if the labeling of an FDA-regulated food product were at issue.
The FMIA and PPIA Regulatory Scheme
Under the PPIA and FMIA, the USDA must pre-approve all product labeling by concluding that it is neither false nor misleading. See 21 U.S.C. § 457(c); 21 U.S.C. § 607(d). Both the PPIA and the FMIA contain preemption provisions that expressly prevent states from imposing restrictions that diverge from federal law. The PPIA provides that “[m]arking, labeling, packaging, or ingredient requirements . . . in addition to, or different than, those made [under the PPIA] may not be imposed by any State.” The FMIA contains an identical provision, which the Supreme Court has noted “sweeps widely.” Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 459 (2012).
“Meat” You in Court — Recent Caselaw
By and large, courts have found that the PPIA and FMIA preempt garden-variety state-law claims that purport to challenge meat and poultry labeling as false or misleading. For example, in Cohen v. Conagra Brands, Inc., 2020 WL 5628937 (C.D. Cal. Aug. 20, 2020), the defendant’s chicken products were labeled as “100% Natural” and as having “NO PRESERVATIVES!” “NO ARTIFICAL COLORS” and “NO ARTIFICIAL FLAVORING” — statements the plaintiff alleged were misleading given the presence of synthetic ingredients. The court summarily rejected the plaintiff’s claims, noting they were “expressly prohibited” by the PPIA and FMIA, because the USDA had already deemed these particular statements non-misleading when it granted its pre-approval to the products’ labeling bearing those statements. The court reached the same conclusion regarding an image of the product’s packaging that appeared online, finding “no reason to distinguish between the packaging itself and an image of the packaging viewed over the Internet.” See id. at *2. In other words, the court refused to create what one might call an “advertising loophole.” Several other courts have also rejected attempts to circumvent the federal regulatory regime by challenging statements appearing in meat and poultry labeling pre-approved by the USDA. See, e.g., Meaunrit v. Pinnacle Foods Grp., LLC, 2010 WL 1838715 (N.D. Cal. May 5, 2010) (claim preempted where plaintiff challenged labeling of pot pies as “microwavable”); Phelps v. Hormel Foods Corp., 244 F. Supp. 3d 1312 (S.D. Fla. 2017) (claim preempted where plaintiff challenged “100% Natural” and “No Preservatives” label on defendant’s Natural Choice brand deli-style meat products).
Another recent case out of California, Leining v. Foster Poultry Farms, Inc., 61 Cal. App. 5th 203 (Cal. Ct. App. 2021), shows the strength of PPIA’s (and FMIA’s) express preemption clause. In that case, a consumer plaintiff challenged the defendant Foster’s use of an American Humane Association logo — proclaiming “American Humane Certified” — on certain chicken products, claiming that Foster’s chickens were not treated humanely. Pursuant to the PPIA, Foster had sought and obtained USDA pre-approval for all of its chicken labels, including the humane certification. The court found that all the claims against Foster were expressly preempted because the USDA had approved the label in question and concluded it was not misleading. This was true even though the logo in question represented the stamp of approval from a third party. Notably, the court pointed out that animal welfare activists had specifically petitioned the USDA to approve third-party certifications (such as “American Humane Certified”) only from entities with “stricter standards than conventional industry practices.” The USDA refused, stating that it would approve third-party certifications as long as consumers could ascertain from the third party’s website whether the certification met consumers’ expectations. Thus, the court concluded, the plaintiff’s claims against Foster “based on [the] allegedly misleading use of the word ‘humane’ on its labels” would have the court impose “a particular meaning on ‘humane’ when used on a label, in direct contravention of the [USDA]’s determination that the meaning of the word should be left to the certifier.” In other words, the PPIA prevents a court from second-guessing any determination by USDA regarding labeling —even a decision that is one step removed from any substantive determination about the product, provided that a consumer could learn about the reason for that third-party certification online.
Courts have not, however, expanded the sweep of PPIA/FMIA preemption beyond claims that challenge the approved product label itself. In Organic Consumers Association v. Sanderson Farms, Inc., 284 F. Supp. 3d 1005 (N.D. Cal. 2018), the plaintiffs alleged that defendant Sanderson’s Internet and television ads about its chicken products were false and misleading. The challenged ads made various claims, including that Sanderson’s chicken was “100% Natural” and that “at Sanderson Farms, being 100% natural means there’s only chicken in our chicken.” Even though the PPIA’s and FMIA’s express preemption clauses do not explicitly apply to Internet and television advertising, Sanderson argued that the plaintiffs’ state-law claims based on its advertising were impliedly preempted because they interfered with the regulatory schemes in PPIA and FMIA. Sanderson took particular issue with the plaintiff’s challenge to the “100% Natural” claim because the very same claim appeared on Sanderson’s labels, which the USDA had explicitly pre-approved. That pre-approval, Sanderson argued, necessarily meant that the USDA had found the claim non-misleading. The very same claim, Sanderson argued, could not be misleading when made in Internet or television ads.
The court rejected Sanderson’s preemption arguments. Although the USDA had reviewed the “100% natural” claim for “technical and scientific accuracy” when it approved the product label, the court explained, “common sense” dictates that such language can be manipulated in an advertisement so as to be false and misleading in context. In this case, Sanderson’s challenged advertisement had done more than merely repeat the approved labeling statement; instead, it added the gloss that this statement “means there’s only chicken in our chicken,” and accompanied it with “images, representations and language” not included on the USDA-approved label. This allowed the court to conclude that plaintiffs’ claims were not preempted
The Sanderson court’s reading of the PPIA and FMIA indicates that the inclusion in an advertisement of specific language from a USDA-approved label will not necessarily immunize the advertisement as a whole from challenge if the ad makes additional claims that arguably misconstrue or alter the meaning of the label statement. It’s true that cases like Cohen v. Conagra Brands, discussed above, have rejected an “advertising loophole,” under which a plaintiff could challenge specific label language that had already been preapproved just because it appeared in an advertisement. Nevertheless, as Sanderson shows, producers must be careful: if an advertisement spins USDA-approved language, changing or expanding the context or meaning with additional text or imagery, a court may be unwilling to find preemption.
Similarly, preemption may not extend to products that, although meatless, are marketed together with or are in the same product line as USDA-regulated meat products, and that share label language with the USDA-approved labels for the related meat products. For example, in Vanlaningham v. Campbell’s Soup Co., 492 F. Supp. 3d 803 (S.D. Ill. 2020), the court rebuffed Campbell’s argument that the FMIA and PPIA should, through implied preemption, block state tort suits challenging the labeling of Campbell’s non-meat and non-poultry products. There, the plaintiffs challenged the labeling on certain soup products as having “no preservatives added” and as being “made with patience, not preservatives.” While the particular soups that the plaintiffs challenged did not contain meat, they were allegedly “generally characteristic” of other soups in the same product lines that did contain meat and thus had gone through the USDA’s pre-approval process. Campbell’s argued that, because the USDA had approved the “no preservatives” claim for its meat-containing soups, the plaintiffs’ claims attacking the same claim on the labels of meatless soups, which contained the very same alleged “preservatives,” should be preempted. The court disagreed, concluding that the FMIA and PPIA did not reflect Congress’s intent “to create uniformity in all food labeling,” just in the labeling of meat and poultry products. Accordingly, the court refused to “generalize” the USDA’s approval of Campbell’s “no preservatives” claims to all of Campbells’ products, noting that an ingredient which may constitute a preservative in a meat product may not be a preservative in a non-meat product, or vice versa.
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All in all, courts remain quick to shoot down attempts to circumvent the federal regulatory regime governing poultry and meat products where plaintiffs directly challenge the labeling of products that the USDA has pre-approved. At the same time, some courts have been reluctant to find PPIA/FMIA preemption where plaintiffs challenge materials that the USDA has not directly laid eyes upon—such as non-label advertising, or the labeling of meatless products—even if the USDA has already reviewed and approved the challenged claims in other contexts.
 The ads at issue also included videos, fact sheets, and FAQs about Sanderson’s chicken products. Television ads also featured characters named “Bob” and “Dale” wearing Sanderson baseball hats and making additional comments such as “no antibiotics to worry about here” and “good, honest chicken.”