When it comes to food, we’re more often like the kids singing “Food, Glorious Food” in the beginning of the musical Oliver! than like the serious legal mavens we pretend to be. As noted earlier, we usually bloviate over the “D” part of the FDCA, not the “F” part. Nevertheless, sometimes food litigation has useful things to say about the drug-and-device stuff that we work on day after day — our bread-and-butter, if you will.
The Food Liability Law Blog recently posted an interesting item with a real grabber of a title: “Dismissal of ‘I Can’t Believe it’s Not Butter’ Claims: Another example of Iqbal/Twombly Succeeding Where Preemption Cannot.” Recently, it has often felt as if TwIqbal is a necessary alternative to, or consolation for, Levine. The Food Liability Blog discussed a case, Rosen v. Unilever United States, Inc., 2010 U.S. Dist. LEXIS 43797 (N.D. Cal. May 3, 2010), in which the plaintiff claimed that both the label and advertising for I Can’t Believe it’s Not Butter are misleading because they hawk a “blend of nutritious oils” when one of those oils is partially hydrogenated oil, which food fascists say isn’t nutritious at all.
First the bit about preemption not succeeding. The issue was whether the claims were preempted by the Nutrition Labeling and Education Act (NLEA), 21 USC section 346 et seq and the dormant Commerce Clause. The analysis on this issue is very different from what we see in drug and device cases. (Hence our refusal to say ‘We Can’t Believe It’s Not Preempted.’) There is no reference to Levine. Nor should there be. Instead, the court says that regulating food marketing is squarely within historic police powers, citing Farm Raised Salmon Cases, 42 Cal 4th 1077, 1088 (2008). (We blogged about the Farm Raised Salmon cases here and here and other posts referenced therein.) Then the court draws a distinction between the parts of food labelling that are regulated by the NLEA and the parts that are not. It’s not like drug labels, where the entire label is subject to the FDA’s approval. According to the court, the I Can’t Believe it’s Not Butter label’s listing of ingredients is subject to the NLEA, but the allusion to the “nutritious blend” is advertising in the label, and is subject to state consumer protection laws, not the NLEA. (Query whether calls for heightened food label regulations will expand preemption in that area. But we digress.) Anyway, from the perspective of defense lawyers, the first course here is not so tasty.
But the main course is much more satisfying. When we see TwIqbal on the menu it’s as if Pavlov rang the dinner bell and we start to salivate. The court breaks TwIqbal down into the two prongs of (1) substantive fact pleading vs. conclusory blathering, and (2) stating a plausible, rather than merely possible, claim for relief. And then the court proceeds to skewer the Complaint on both prongs. The way it does so is interesting and instructive — and, we think, worthy of emulation.
What we get is a heaping helping of logic. The court reasons that plaintiff is asserting a categorical syllogism: “For the representation ‘blend of nutritious oils’ to be true, all constituent oils must be nutritious. One of the constituent oils in the product [partially hydrogenated oil] is not nutritious. Therefore, the product representation is false.” Rosen, 2010 U.S. Dist. LEXIS 43797 at *13. (Another quick digression: The court defines “categorical syllogism” by citing Aylett v. Secretary of HUD, 54 F.3d 1560, 1567-68 (10th Cir. 1995). The author of that opinion is Senior Judge Aldisert. We are familiar with Judge Aldisert because he is from our Circuit, the Third. Judge Aldisert has written a book called “Logic for Lawyers.” We might start citing that book more often in the future.) The Rosen syllogism breaks down because one non-nutritious ingredient doesn’t necessarily mean the blend can’t be nutritious. That’s merely a conclusion, not a factual assertion, so it flunks TwIqbal.
Maybe we ought to defer to chemists and chefs, but what the court is saying seems to make sense. Vitamin-enriched cardboard (which we think we might’ve actually eaten this morning) would still contain vitamins, right? This post that you are reading right now might include a lot of mindless twaddle and bad ideas, but if it contains a good idea or two can’t we brag about that? (Yes, we know – that’s truly a hypothetical.) The Complaint alleged no facts showing that something non-nutritional somehow negated components that are nutritional. The court goes on to say that the Complaint does not even state any facts showing why partially hydrogenated oil is not nutritious. Again, plaintiff serves up pure conclusions.
As for the second prong of TwIqbal … well, in this case it ends up looking pretty similar to the first, except it’s heavily seasoned with Latin and more logic. The court espies the fallacies of petitio principii (begging the question), composition (properties of the part must be attributed to the whole), and division (properties of the whole are ascribed to each part) in plaintiff’s notion that a blend cannot be nutritious unless every single constituent is nutritious. It’s like Wittgenstein on Torts. It’s a fancy way of saying ‘So what?’ to the presence of partially hydrogenated oil. But it works, so who are we to complain?
And now here comes the dessert: the court dismisses the Complaint with prejudice, because “there is no cure for the lack of logical tie.” Id. at *17. Crème brulee with a nice, ever-so-slightly-burnt crust. We have to admit that even a ham-fisted defense lawyer had to wonder a moment about that conclusion. Isn’t there some way for the plaintiff to insert some sort of factual allegation that would save the Complaint? But unless there’s some morsel of break-through science out there that plaintiff knows about (we sure don’t), the court is correct.
As we said recently, not every case is suitable for a Rule 12 motion. Believe it or not, every once in a while a plaintiff alleges something factual and plausible. But it’s frustrating when bare-bones, muddle-headed (dare we say, non-nutritious) complaints get by (thereby commencing expensive, asymmetrical discovery and possibly setting the table for what’s politely called settlement but is really the last letter in the acronym used by Ernst Stavro Blofeld’s villainous group that was always out to kill James Bond) because TwIqbal is more often cited than followed. TwIqbal is a test, and the Rosen case is an example where a judge applied that test about as rigorously and logically as possible. Just think if that sort of logic were applied to issues of learned intermediary, causation, and reliance. A lot of plaintiffs’ lawyers would be out to lunch – on thin gruel.