Today is the birthday of Copernicus, the great Polish astronomer who concluded that the earth revolved around the Sun.  Anyone who has consistently read this blog knows that our Sun is FDA preemption.  If the claims in a case are preempted by federal law, the case goes away, no matter how sympathetic the plaintiff or how ugly the company emails.  So enamored are we with preemption that we occasionally detour from drug and device cases to gaze at FDA preemption done right in other contexts.  For example, we have looked at food cases and cosmetic cases.  It seems that most of those cases come from California, and one could indulge in some dime-store cultural anthropology to figure out why that is so.   Perhaps it is simply because of the batty consumer protection laws out there.

Bottled water is considered a food, and we have a nice little preemption case in The Chicago Faucet Shoppe, Inc. v. Nestlé Waters North American Inc., 2014 U.S. Dist. LEXIS 16871 (N.D. Ill. Feb. 11, 2014). The case was a purported class action (remember that) alleging violations of the Illinois Consumer And Deceptive Business Practices Act “and the materially similar consumer protection acts of other states.” The plaintiff lawyers apparently wanted a very big class.  What was the alleged deception?  The plaintiff complained that the defendant failed to disclose “on its websites, invoices, and delivery trucks [wow!] the fact that Ice Mountain 5-gallon bottled water is resold municipal water and not natural spring water.”  The plaintiff claimed that it stopped buying the water as soon as it learned Ice Mountain was not from a natural spring, that it never would have bought the water if it knew the true facts, and that the company’s nondisclosure of the actual source permitted it wrongly “to charge a premium for inferior water.”

The plaintiff filed the action in Illinois state court, but the defendant successfully removed the case to federal court under the Class Action Fairness Act.  Good move. Or is it “good remove”?  Either way, the defendant had to be happy with the removal, because it got a very well-reasoned decision from the federal district court judge.

Right away we DDL lawyers feel a twinge of jealousy when we see that food products enjoy robust express preemption via 21 USC section 343, which provides that states or their political subdivisions (including juries) may not impose “any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity.”  The “any” and the “identical” are nice words. They are almost musical. Ice Mountain water is considered to be “purified water” by the FDA, and the source of such water is not required to be disclosed.  Indeed, the FDA “considered but rejected a disclosure requirement for purified water, ultimately concluding that consumers purchasing that category of water were concerned with purity, not sourcing.”

The plaintiff tried to get around this express preemption with an argument that we DDL defense hacks will find familiar: that while labeling might be preempted, marketing is not. But the court did not buy that distinction, reasoning that “labeling is marketing”. The plaintiff furnished the company’s website as an example of marketing.  Guess what the website showed? The labels on the five-gallon bottles. The plaintiff’s attempt to circumvent preemption was all wet.

It is nice to see the federal judge pouring out the disingenuous plaintiff argument so swiftly and cleanly. As we look out our window at the happy land bounded by the Delaware and Schuylkill Rivers, we fondly hope that the lovely preemption analysis in The Chicago Faucet Shoppe will flow through our local courthouse and wash away spurious suits.

We recognize that not everyone might agree with the FDA’s decision that sourcing for purified water need not be disclosed.  But the FDA had its reasons, and manufacturers must live with those reasons and operate their businesses in accordance with that rule.  If you think the FDA is wrong-headed, then tell the FDA.  Or write your Congressman.  But chaotic nonsense would ensue if local philosopher kings or juries could announce their own standards and impose wildly varying requirements on companies trying to do business throughout the country.  In fact, companies could not comply with the inevitable myriad of crazy-quilt requirements. (Speaking of crazy-quilt requirements, Bexis reminded us that the ancients tried to explain the anomalies in the old earth-centered cosmology by conjuring up “epicycles.”  The term “epicycles” has since become a synonym for bad science.  Copernicus managed to toss epicycles into the dustbin of history.  What new Copernicus will emerge to eradicate plaintiff lawyer junk science?  But we digress.) Absent an honest, rigorous application of federal preemption, the tort system amounts to a tax, or a wealth transfer mechanism taking money from people who make things and giving it to people who make trouble.  The federal judge in The Chicago Faucet Shoppe case put it better than we can:  “state law cannot be used to fill what private litigants perceive to be gaps in the regulatory requirements imposed by federal law.”

There is an odd wrinkle in the case. The complaint also mentioned that in some communications the company might have affirmatively represented that the water was spring water.  The court allowed that affirmative misrepresentations might not enjoy the same preemptive effect.  But the plaintiff had “all but disavowed a misrepresentation theory of fraud.”  The court was not going to “force a theory of relief on the plaintiff that it cannot, or does not wish to, assert.”  That “cannot, or does not wish to” is interesting.  Reading between the lines, it appears that the “cannot” comes from the class representative’s lack of reliance on the alleged affirmative misrepresentation.   It appears that “the does not wish to” comes from the realization that the broad class definition would crumble under the requirement of such reliance.  Thus, the plaintiff lawyers seem to have been caught between TwIqbal and Fed. R. Civ. P. 21.

There was also a claim of unjust enrichment, but that claim is unavailable if there was an express contract, which there was (for purchase of the water) in this case.  In any event, the unjust enrichment claim rested upon the same alleged nondisclosure and was, therefore, subject to the same express preemption.

For any of you fellow DDL practitioners who read The Chicago Faucet Shoppe decision with approval and a bit of envy, we offer this quote from Smokey Robinson, another all-time great whose birthday is today: we “second that emotion.”