Photo of Bexis

It’s neither drugs nor devices today.
It’s fish.
Actually, it’s Farm Raised Salmon, in which the California Supreme Court this morning unanimously rejected the defendants’ preemption defense.
We’re a little tied up today. In fact, if not for the seeming imperative of being first to speak in the blogosphere, we’d take the night to read and think about this one.
So you’ll get our real post about this case tomorrow.
All we’re saying today is that (1) individuals initiated putative class actions complaining that grocery stores sold artificially colored farmed salmon without disclosing the use of color additives, (2) the trial court sustained a demurrer (the California state law equivalent of granting a motion to dismiss) in part on the ground of preemption, (3) the appellate court affirmed, and (4) the California Supreme Court reversed, holding that preemption was not available.
The Supreme Court emphasized repeatedly that the Nutrition Labeling and Education Act of 1990, which supplied the preemption provision, forbids states from imposing requirements that are not identical to the federal standards, but also expresses, by negative implication, what states may do: “states may establish their own requirements pertaining to the labeling of artificially colored food so long as their requirements are identical to those contained in the FDCA in section 343(k).” Slip op. at 6-7.
So, fellow drug and device defense lawyers, not to worry.
There’s nothing fishy here — nothing to carp about — in our little piece of the pond.
Farm Raised Salmon is bad news for the food industry, but it doesn’t seem to affect us.