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Lilly v ConAgra Foods, Inc.

Case No. 12-55921 (C.A. 9, Feb. 20, 2014)

Some days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights, and the most complicated, controversial problems in civil, criminal and administrative law. Today we consider the coating on sunflower seeds.

In her putative class action complaint, the plaintiff alleges that the tasty coating placed on sunflower seed shells is intended to be ingested – and is ingested – before the inedible shell is spat out and the kernel eaten; that is what is expected before expectoration. Therefore, the sodium content in a “serving” of sunflower seeds, as stated on the package, must include the sodium contained in the edible coating.

Taking those allegations as true for the purposes of a motion to dismiss, we hold today that the sodium content of the edible coating added to sunflower seed shells must, under federal law, be included in the nutritional information disclosed on a package of sunflower seeds. Because plaintiff’s state-law claims, if successful, would impose no greater burden than those imposed by federal law, her state law claims are not preempted. We reverse the granting of the defendant’s motion to dismiss.
 

 

Judge(s): Barry G. Silverman
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Administrative Law , Conflict of Laws
 
Circuit Court Judge(s)
Andrew Hurwitz
Barry Silverman
Roger Vinson

 
Trial Court Judge(s)
Gary Klausner

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Rosemary Rivas Finkelstein Thompson LLP
Danielle Stoumbos Finkelstein Thompson LLP

 
Defendant Lawyer(s) Defendant Law Firm(s)
Patrick Brookhouser, Jr. McGrath North Mullin & Kratz PC LLO
Lauren Goodman McGrath North Mullin & Kratz PC LLO
Noah Priluck McGrath North Mullin & Kratz PC LLO

 

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Click the maroon box above for a formatted PDF of the decision.
lilly v. conagra foods 5 portion”of a food. for that reason, the portion of the edible lilly v. conagra foods2 transfer a seed over to the other side with their tongue, crack more specifically, lilly alleged that the listing of sodium in serving of sodium is to be calculated. first, the regulations district court correctly concluded that plaintiff’s attempt to regulatory discretion, the fda could have easilyprovided that the amount because courts are not — not all, of the sodium from the sunflower seeds’ shell which that no state may “directly or indirectly establish . . . any opinion by judge silverman; bus. & prof. code § 17200 et seq.). conagra moved to dismiss the complaint, arguing that federal law expressly the amount of sodium on “inedible components,” conagra specific reasons for why conagra’s sodium-content labeling different labeling in california is expressly preempted by the amount of sodium “in each serving size or other unit of for the ninth circuit omaha, nebraska, for defendant-appellee. district judge vinson dissented, and would hold that the “declaration of nutrient and food component content shall be federal preemption, of plaintiff’s putative class action raising defendant-appellee. education act, and the manufacturer had fully complied with dismiss de novo. cousins v. lockyer, 568 f.3d 1063, 1067 labelingrequirementsdifferentfromthoserequiredbyfederal * on the basis of the food as packaged or purchased.” 1036, 1038–39 (9th cir. 1999) (quotation marks and citation noted before, “‘whether a business practice is deceptive will case is straightforward. the federal food, drug, and top of the shells most certainly are not inedible. to the and some have — but they are not required to do so. (9th cir. 2009). “all well-pleadedallegations of material fact promulgated various regulations that are relevant to how a complaint was appropriate because no reasonable consumer imposed by or contained in the applicable [federal kernels.” lilly v. conagra foods 9 and noah priluck, mcgrath north mullin & kratz, pc llo, sunflower seed packages. argued and submitted reversed and remanded.1 no. 12-55921 although we might prefer a regulation that includes the sunflower seed shells at issue in this case are inedible. thus, statutes: the consumer legal remedies act (cal. civ. code that consumers following these instructions “ingest some, if plaintiff’s state law claims were not preempted. labeling of food, drugs, cosmetic products and medical expressly state that the intended manner for consuming the nlea, and conagra has fully complied with the applicable shell is spat out and the kernel eaten; that is what is expected code § 17500 et seq.), and the unfair competition law (cal. expressly preempted by the federal nutrition labeling and seed and spit the shell. experienced seeders pop a handful of lilly v. conagra foods 3 conagra had a duty to disclose the sodium content of both light most favorable to the non-moving party.” faulkner v. seeds in their mouth and store them in one cheek, then 21 c.f.r. § 10 1.9(b)(9). lastly, and most importantly for favored by the majority today.1 coating added to sunflower seed shells must, under federal concluded that lilly’s attempt to require conagra to use provisions concerning the composition or labeling of food the applicable food and drug administration regulation. directly or indirectly imposes obligations or contains package of sunflower seeds. the panel further held that federal regulations. in its rulemaking proceeding and in the exercise of its sunflower seeds by focusing exclusively on the kernels. california law by misrepresenting the sodium content of the require the manufacturer to use different labeling was of sodium for food labeling purposes is “based on only the edible portion only the edible portion of food, and not bone, seed, shell, or intended to be ingested as part of the sunflower seed eating disclose the sodium content of “the sunflower seeds and the conagra foods, inc. sells several varieties of sunflower rgk-sh devices. congress amended the fdca in 1990 by enacting federal preemption § 101.12(a)(6) (emphasis supplied). it is undisputed that the lilly v. conagra foods6 other inedible components.” 21 c.f.r. § 101.12(a)(6). [that] . . . [a]re not imposed by or contained in the applicable adt sec. servs., inc., 706 f.3d 1017, 1019 (9th cir. 2013) added to the inedible components and intended for consumption must be be provided for all products intended for human our purposes, the amount of sodium in the food is “based on therefore, i respectfully dissent. that “‘stands as an obstacle to the accomplishment and some days we are called upon to consider such profound law. today we consider the coating on sunflower seeds. v. plaintiff’s state-law claims, if successful, would impose no prominence as it does the salt content of the sunflower impose no greater burden than those imposed by federal law, federal law, be included in the nutritional information the mouth.” the complaint quoted the directions on the coating on the shell must be accounted for in the calculation that lilly seeks to impose here are thus no different from in conagra’s view, lilly’s lawsuit is an attempt to force while the shells themselves are inedible, the coatings put on requires that the sodium listings include the “edible plaintiff-appellant. lilly v. conagra foods 7 vinson, district judge, dissenting: of consumers who purchase these seeds. lilly’s central portion of the food – the shell of the sunflower seed. because phrase “not identical to” means “that the state requirement the united states food and drug administration has williamson v. mazda motor of am., inc., __ u.s. __ , 131 have drafted the regulation in any detail that it wanted (and it usually be a question of fact not appropriate for decision on measure.” 21 u.s.c. § 343(q)(1)(d). nlea also provides counsel requirement for the labeling of food that is not identical” to and ubiquitous nutrition facts panel found on most food flavorings. lilly sued conagra as a representative of a class the statutoryand regulatoryframework undergirding this see 21 u.s.c. § 343-1(a)(5) (no state may “directly or including clarifying statements about the inedible portions — regulation].” 21 c.f.r. § 100.1(c)(4). corporation, disclosed on a package of sunflower seeds. because conagra foods, inc., a delaware d.c. no. lillyalleged that “conagra’s sunflower seeds’packages we have jurisdiction to review this appeal under [federal regulation] . . . or [d]iffer from those specifically lilly asserted causes of action under three california threats to the environment, intense and existential questions issues as eleventh-hour death penalty appeals, catastrophic seed, shell, or other inedible components.” 21 c.f.r. natural and plain meaning of its words.” crown pacific v. the nutrition facts panel of these seeds either does not motion to dismiss, we hold today that the sodium content of the fdaregulations statethatmanufacturersneed not include these issues must await summary judgment or trial. the rosemary m. rivas (argued) and danielle a. stoumbos, allow such a nuanced distinction. the fda could, of course, (21 u.s.c. § 343) and thus her “state law claims [were] experience. indeed, these coatings come in flavors such as alleged that minimizing or altogether ignoring the sodium facially preempted by federal law. it is not. sunflower seeds is to place the entire shell and the kernel in the federal requirements. 21 u.s.c. § 343-1(a)(5). the seeds under its “david” brand, including some in which the 28 u.s.c. § 1291. we review an order granting a motion to include the amount on the shells. and should not be — in the regulation-writing business, i consumption.” 21 c.f.r. § 101.9(a). second, the the “sunflower seeds’ kernel and shell.” packages. nlea requires that a food’s label include the “a regulation should be construed to give effect to the shells of the seeds are coated with salts, seasonings, and/or defendant’s motion to dismiss. 653 f.3d 912, 917 (9th cir. 2011). [a motion to dismiss].’” davis v. hsbc bank nev., n.a., 2:12-cv-00225- bound to apply this unambiguous regulation objectively as it shell’s absorbed salt and to draw a distinction between an edible, but the coating is and is intended to be. federal law lilly v. conagra foods4 ** asserts that lilly’s suit is expressly preempted by federal law. lilly’s pending motion for judicial notice is denied as moot. sunflower seeds references only the kernels, any reasonable gerber prods. co., 552 f.3d 934, 938 (9th cir. 2008)). this is the situation here. there may be any number of fact- preempted these state law claims as they would impose food is not reflected in the nutrition facts of the products.” lilly content of the sunflower kernels and shells in equal appeal from the united states district court conagra argues that since the nutrition facts panel on the “serving” of sunflower seeds, as stated on the package, must cosmetic act of 1938, 21 u.s.c. §§ 301 et seq., governs the law claims are not preempted. we reverse the granting of the edible “coating” and an inedible shell, we are nonetheless fda regulation. food companies have the option of of food, and not bone, seed, shell, or other inedible components, but salt shell in the nutrition facts at all” or does not state the “salt could still do so now), making distinctions such as the one consumer would understand that the sodium listing did not greater burden than those imposed by federal law, her state conagra into including the sodium content of an inedible packaging itself: “[c]rack the shell with your teeth, eat the states that the amount of sodium for food labeling purposes and all others similarly situated, discussion patrick e. brookhouser, jr. (argued), lauren r. goodman, “ranch” and “nacho cheese” precisely because they are to aleta lilly, on behalf of herself conagra argues in the alternative that dismissal of the silverman, circuit judge: food that is not identical” to the federal requirements); believe we should leave that task to the fda in the first that the tasty coating placed on sunflower seed shells is impose an additional sodium labeling requirement that [was] it seems apparent to me that the district court correctly this summary constitutes no part of the opinion of the court. it has not identical to the” nutrition labeling and education act occupational safety & health review comm’n, 197 f.3d summary** finkelstein thompson, llp, san francisco, california, for law, be included in the nutritional information disclosed on a intended to be ingested – and is ingested – before the inedible the panel reversed the district court’s dismissal, based on before: barry g. silverman and andrew d. hurwitz, content on the shells in the label is misleading and that opinion the panel held that the sodium content of the edible february 6, 2014—pasadena, california included.” however, it did not. in the complaint are accepted as true and are construed in the the district court never reached this issue, and as we have of the sodium content. the asserted state law requirements is “based on only the edible portion of food, and not bone, california state law claims and challenging the labeling of (citations omitted). we also review questions of statutory the nutrition labeling and education act, which established omitted). the critical regulation here naturally and plainly for the central district of california r. gary klausner, district judge, presiding indirectly establish . . . any requirement for the labeling of 691 f.3d 1152, 1162 (9th cir. 2012) (quoting williams v. in her putative class action complaint, the plaintiff alleges hines v. davidowitz, 312 u.s. 52, 67 (1941)). judge.* instance. law. the district court agreed, ruling that lilly sought “to circuit judges, and c. roger vinson, senior district factual background 1 1 the honorable c. roger vinson, senior district judge for the u.s. filed february 20, 2014 execution of [its] full purposes and objectives’”) (quoting would be deceived by its labeling. more specifically, question before us at this point is whether lilly’s action is it, then eat the seed and split [sic] the shell.” lilly alleged lilly v. conagra foods8 expressly preempted.” lilly timely appealed. dissent by judge vinson § 1750 et seq.), the false advertising laws (cal. bus. & prof. s. ct. 1131, 1136 (2011) (federal law preempts any state law federal law and not preempted. include the sodium contained in the edible coating. been prepared by court staff for the convenience of the reader. opinion interpretation and preemption de novo. aguayo v. u.s. bank, uniform food labeling requirements, including the familiar before expectoration. therefore, the sodium content in a district court for the northern district of florida, sitting by designation. be consumed before the shell is discarded. the shell is not has been written. in my view, it is not currently written to does not violate the california statutes invoked by lilly. but the edible coating added to sunflower seed shells must, under despite our wishes otherwise, there are no page or word limits on for publication require that the “[n]utrition information relating to food shall but conagra’s argument simply ignores the fact that taking those allegations as true for the purposes of a of civil and human rights, and the most complicated, contrary, the coatings impart flavor and are indisputably plaintiff-appellant, controversial problems in civil, criminal and administrative because plaintiff’s state-law claims, if successful, would allegation was that conagra’s nutrition labeling violates united states court of appeals


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