Cruz-Alvarez_FStorch_TGuest Commentary

by Frank Cruz-Alvarez and Talia M. Zucker, Shook, Hardy & Bacon L.L.P.

On November 9, 2012, the United States District Court for the Northern District of California, dubbed “The Food Court” by this blog, struck again – and this time, not in favor of food manufacturers.  In Khasin v. The Hershey Company, the federal district court rejected preemption of a nutrient content claims-based class action.

In this putative class action, Plaintiff contends that The Hershey Company made unlawful nutrient content claims on the label of its food products.  In moving to dismiss the class action, Hershey made several arguments, including preemption, addressed below.

First, Hershey maintained that a private right of action to enforce labeling requirements was barred by the Food, Drug, and Cosmetic Act (“FDCA”).  Finding this argument inapposite, the court observed that Plaintiff was not suing to enforce the federal statute, but rather his action was founded on parallel state laws that prescribed labeling requirements similar, if not identical, to the FDCA’s requirements.  And, in cases of this kind, courts have refused to find that preemption precludes the private, state-based causes of action because “the state duties in such a case ‘parallel,’ rather than add to, federal requirement.” (citation omitted).  In reaching this conclusion, the court found Hershey’s application of Pom Wonderful LLC v. Coca-Cola Co. irrelevant because Plaintiff did not bring a cause of action based on the federal FDCA, but rather state law, unlike the plaintiff in Pom.