More and more we find ourselves at parties on Oscar night. Lately they’ve become red carpet parties. Jeez. We have no idea how that happened, but that’s where things are. There’s an upside though: the alcohol. Oh, and the snide comments. The alcohol and the snide comments make for fun. A couple of years ago, we stood watching yet another actor wrapped in suspect confidence and dazzling designer fabric standing in front of a microphone on the red carpet talking about [insert far away country] and how uninformed we are about its dire circumstances and how this actor was now going to inform us. Yummy. A guy holding a beer next to this particular DDL blogger summed things up: “Actors. What would we do without them?”
That’s pretty funny. But watch out. Lawyers may be worse. At those same parties others seem to think that you as a lawyer mysteriously have the answers to all sorts of difficult questions because your daily work-life is filled with complicated, intellectual problems that you approach in complicated, intellectual ways. But then you leave the party, go to work the next day and deal with crazy stupid stuff.
A Ninth Circuit panel seems to have faced this same feeling 11 days ago when it wrote this opening paragraph:
Some days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights, and the most complicated, controversial problems in civil, criminal and administrative law. Today we consider the coating on sunflower seeds.
Lilly v. ConAgra Foods, Inc., 2014 U.S. App. LEXIS 3159, at *2 (9th Cir. Feb. 20, 2014).
Yup. That’s the level of things. Lawyers on both sides are arguing over whether coating applied to a sunflower seed is part of the shell or something else. If it’s part of the shell, the FDA does not require the manufacturer to disclose the coating’s nutritional information on the label. If it’s something else, the nutritional information should be disclosed. And preemption hangs in the balance. So what is a silly question for a court of law – whether sodium in the coating of a sunflower seed should be disclosed on the label – becomes a complicated and intellectual battle between complicated and intellectual lawyers.
It’s like gathering Socrates and Aristotle to argue about whether the entirety of Raiders of the Lost Ark was pointless because the Nazis were going to open the ark and get killed anyway.
The majority decided that the coating isn’t the shell. It’s something else that goes on the shell. Id. at *8. And, while an FDA regulation exempts from disclosure the nutritional content of the inedible shell, that exemption doesn’t apply to the coating. Id at *8-9. So plaintiff’s state-law claims (under the usual series of California statutes) alleging that the amount of sodium in the coating should be disclosed would not enforce a standard different from the FDA’s. No preemption. Id. at *9-10.
Now, even the court, try as it might, couldn’t avoid creating a complicated and intellectual argument over this. There was a
dissent. And, doing our duty and adding to the lawyer-created muddle, we tend to agree with it:
The critical regulation here naturally and plainly states that the amount of sodium for food labeling purposes is “based on only the edible portion of food, and not bone, seed, shell, or other inedible components.” 21 C.F.R. § 101.12(b)(6) (emphasis supplied). . . . . .
Although we might prefer a regulation that includes the shell’s absorbed salt and to draw a distinction between an edible “coating” and an inedible shell, we are nonetheless bound to apply this unambiguous regulation objectively as it has been
written. . . . . The FDA could, of course, have drafted the regulation in any detail that it wanted (and it could still do so now), making distinctions such as the one favored by the majority today. Because courts are not — and should not be — in the regulation-writing business, I believe we should leave that task to the FDA in the first instance.
The dissent went on to say that the FDA could have drafted – and still could draft – the regulation to say “’but salt added to the inedible components and intended for consumption must be included [in the label].’ However, it did not.” Id. at *11 n.1. We agree. Leave the regulating to the regulators.
So there you have it. A court battle over a label that will never be read by 12-year-old boys who chew sunflower seeds in
little-league dugouts across the country. Lawyers. What would we do without them?