Still in The Food Court

Still in The Food Court

Cross-posted at WLF’s contributor page

In a March post, Another Grocery Basket Full of Lawsuit Claims for The Food Court, we examined a U.S. District Court for the Northern District of California decision on Kraft’s motion to dismiss a false labeling suit aimed at a slew of Kraft products. Some claims survived outright while others were temporarily rejected; for the rejected claims, Judge Ronald Whyte drafted a road map for plaintiffs to follow for their forthcoming amended complaint.

Ruling on the Amended Complaint. Ms. Ivie’s lawyers not only reasserted the rejected claims, but also took the opportunity to accuse countless other Kraft products (which she had never actually purchased) of being misbranded. On June 28, Judge Whyte issued his latest ruling in Ivie v. Kraft on that amended complaint.

Regarding Ms. Ivie’s unpurchased products, Judge Whyte threw out (with prejudice) each claim on products which featured only “similar” packaging to those she had bought. He allowed her to pursue new claims involving gum which had “essentially identical” packaging to gum targeted in her first complaint.

On the claims involving certain purchased products that Judge Whyte previously preempted, Kraft again received mixed results. The amended claim involving “natural lemon flavor” for Crystal Light packets met the same fate as the original claim: preempted. Judge Whyte reversed his previous rulings on allegations involving nutrient content claims for a Planter’s nut mix and for a Mexican-style cheese blend. He permitted those amended allegations to proceed. Because rulings on the nutrient content claims would merely parallel, not exceed, what federal labeling rules require, Judge Whyte rejected Kraft’s express preemption arguments.

No Implied Preemption.  More importantly, the judge also addressed implied preemption. Kraft argued that a March 2013 U.S. Court of Appeals for the Ninth Circuit ruling, Perez v. Nidek, created a “narrow gap” through which a state lawsuit must navigate to avoid conflicting with the relevant federal regulatory scheme. Kraft argued that Ivie’s claims did not thread that needle.