Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), was in fact wonderful.  We discussed it in detail here.  It addressed so many things that make preemption right.  It seems particularly wonderful for motions to dismiss state-law food labeling claims.  There’s apparently one problem, though.  Pom didn’t make a preemption ruling.  For all its wonderful language, the court only used it to bar a federal claim under the Lanham Act, not a state-law claim.  Consideration of whether the state-law claims were preempted was left, if necessary, for the trial court on remand.

In other words, despite its wonderful reasoning, Pom left an opening.  And the court in Khasin v. Hershey Co., 2012 U.S. Dist. LEXIS 161300 (N.D. Cal. Nov. 9, 2012), found it. 

Now, we’ll admit that it’s not just the preemption issue that makes us unhappy with Khasin, though that’s one reason.  It’s also because – ok, mainly because – the Khasin plaintiff is suing Hershey – you now, the chocolate company that makes all that tasty candy.  Jeez.  Why not just go ahead and sue goodness, smiles and chocolate-covered joy?  We mean, is this really necessary?  Couldn’t we let this one be?  Do we need to attack Hershey’s Kisses, Milk Chocolate bars, and York Peppermint Patties?  Does it even matter what their labels say?  We’d frankly be fine if the only ingredient listed on these products was “Yumminess, pure indescribable yumminess.”  There should be a preemption clause just for this.  It should say, “Don’t sue chocolate companies over labels.  Ever.”  This is chocolate.  We should be nurturing and protecting it with all we’ve got, not suing it. 

But, alas, the plaintiffs bar marches on.  So a putative class rep brought California state-law claims (as well as an unjust enrichment claim and a federal Magnuson-Moss Act claim) against Hershey.  Apparently, Hershey made misrepresentations on labels and as to nutritional content, healthiness and the like. 

The defense – which has our undying support –argued that the state law claims were preempted, citing the reasoning of Pom.  But, as we said, the trial court found an opening.

While the FDCA has a provision that explicitly leaves its enforcement to the United States, the Khasin court found the plaintiff’s claims appropriate because they were seeking to enforce state, not federal, requirements.  The court relied on the medical device parallel violation exception language from the Supreme Court in Riegel, which allows in very limited circumstance a plaintiff to use state-law claims to enforce regulations that are identical to FDA regulations.  Khasin, 2012 U.S. Dist. LEXIS 161300, at *12.  The court was also persuaded, at least for purposes of a motion to dismiss, that the plaintiff’s complaint made it clear enough that it sought to enforce standards identical to FDCA and FDA standards:

Underlying Plaintiff’s cause of action is the allegation that Defendant’s practices have violated California state law provisions that govern the types of representations made on food labels.  Plaintiff also contends that these provisions mirror the FDCA and federal regulations.  As such, contrary to Defendant’s contention, complying with the demand requested by Plaintiff in this cause of action would not require that Defendant undertake food labeling or representation different from the provisions of the FDCA or the rules and regulations promulgated by the FDA.

Id. at *16.  And so the court found no preemption. 

This comparison to medical device parallel violation claims will no doubt be the blueprint for future attempts at food labeling claims.  But, just as there should be in the medical device context, there needs to be specificity in a complaint.  TwIqbal requires it.  Plaintiffs should be specific about the FDCA or FDA requirements violated, as well as how the state law makes violation of those federal requirements actionable.  Plaintiffs should provide allegations, not boilerplate claims, showing how the state-law requirements are identical to the FDCA or FDA requirements.  The Khasin opinion’s preemption discussion, however, provides few to no such details. 

Even if a plaintiff makes sufficient allegations showing that the state and federal requirements are identical, it might not be enough.  The Ninth Circuit in Pom stated – in the context of its Lanham Act decision – that such state-law claims would still be preempted if they seek to interpret ambiguous federal requirements that the FDA has yet to interpret, or seek to find violations that the FDA has not yet found:

Nor may a plaintiff maintain a Lanham Act claim that would require a court originally to interpret ambiguous FDA regulations, because rendering such an interpretation would usurp the FDA’s interpretive authority.  Where the FDA has not concluded that particular conduct violates the FDCA, we have even held that a Lanham Act claim may not be pursued if the claim would require litigating whether that conduct violates the FDCA.

Again, we saw little to no such consideration in the Khasin opinion.  But, then again, it’s only a district court decision.  It doesn’t have the precedential value of the Pom decision, and the Ninth Circuit may as of yet get the opportunity to explain what’s wrong with such reasoning. 

We sure hope so.  This is chocolate.  It’s red alert time.  We have to do something to stop this.