Last week, the United States Court of Appeals for the Seventh Circuit did its part to stem the tide of consumer fraud food labeling class action claims by dismissing with prejudice a preempted claim concerning fiber in chewy bars. Turek v. General Mills, Inc. and Kellogg Co., No. 10-3267 (7th Cir. Oct 17, 2011) (Posner, J). Ms. Turek alleged that the defendants misled her and other similarly situated consumers by failing to disclose the source of the inulin – the primary fiber – in the chewy bars. Ms. Turek alleged that the defendants used inulin extracted from chicory root, which she further alleged is inferior to unprocessed inulin within, for instance, bananas and onions.
The Seventh Circuit assumed that the allegation was true but irrelevant. The National Labeling and Education Act of 1990 (21 U.S.C. 341 et. seq.) (“NLEA”) and various regulations explain how food manufacturers must label fiber content. The NLEA precludes states from imposing any labeling requirement which is “not identical” to the requirements in the NLEA. As the Court put it:
It is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide. Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.
The NLEA does not create private rights of action, so putative consumer class action representatives must allege violations of state law. Those allegations either must address issues which the NLEA does not cover or must assert state law standards identical to NLEA standards. Ms. Turek technically alleged violations, but Judge Posner analyzed the NLEA label requirements for fiber and determined that the defendants’ fiber label statements complied with the NLEA and applicable regulations. Thus, Judge Posner easily found that the NLEA preempted Ms. Turek’s state law claims which sought additional “non-identical” disclosure regarding the source of the fiber on the product labels.
The opinion is not limited to fiber labels. The opinion contains a helpful curt statement regarding the standard: “consistency is not the test; identity is.” Perhaps this blunt clarification of the “identity” standard will dissipate the next label litigation wave concerning other products. The lesson: If the NLEA and applicable regulations cover statements on a food label, a label which complies with those requirements should not be subject to liability under state law claims.
Judge Posner further clarified that the preemption decision is on the merits, under Federal Rule 12(b)(6). The District Court dismissed for want of jurisdiction, after reaching similar conclusions about NLEA preemption. Judge Posner altered the original judgment to render the dismissal with prejudice.
Food makers must continue to be vigilant about complying with established federal food label guidelines, and the Turek decision provides additional support for that vigilance.
Authors: Terrence P. Canade Gregory T. Casamento
