The plaintiff in Kha v. Tilray Brands, Inc. tried to use California’s Sherman Law to do an end run around the Food, Drug, and Cosmetic Act in a case involving hemp products, but it did not work.  The district court correctly saw the case as an attempt to impose additional, state-law requirements on food labeling, which the FDCA expressly prohibits.  See Kha v. Tilray Brands, Inc., No. 2:25-cv-10630, 2026 U.S. Dist. LEXIS 160579 (C.D. Cal. July 17, 2026).

The plaintiff in Kha alleged that the third-party website where she purchased her products gave product descriptions that disclosed protein amounts in a way that did not comply with the FDCA and California’s copycat Sherman Law.  You are familiar with the Sherman Law.  It is the California statute that purports to incorporate the FDCA by reference, supposedly making violations of that federal law also violations of state law.  As we have explained before, it matters because there is no private right of under the FDCA, and 21 U.S.C. § 337 expressly reserves the right to enforce the FDCA to the United States—not private parties.  Despite this, some courts have allowed private parties to evade section 337 by permitting private actions under California’s Sherman Law, even though the allegations amount to violations of the FDCA. 

That is what the plaintiff attempted in Kha with her class action complaint, which alleged that the product “labeling” was noncompliant and thus misleading, and that she and other consumers should get some or all of their money back. 

The order dismissing the complaint is interesting for a few reasons.  First, the defendant argued that the third-party webpage was not “labeling” regulated by the FDCA.  The district court, however, disagreed and ruled that written and graphic matter on a website that “supplements and explains” a product can constitute “labeling,” even if not physically attached.  The “textual relationship is what is important.”  Kha, at *7.  Under that standard, the court ruled that the plaintiff had plausibly alleged that the web listing could be “labeling” under the purview of the FDCA.  As far as we know, this is the first case where a court has ruled directly that product descriptions on a third-party online marketplace can constitute FDCA-regulated labeling. 

Second, having just ruled that the FDCA regulated the alleged labeling, the district court ruled that the plaintiff still could pursue a private enforcement action through “parallel state law.”  This is the Sherman Law end run that we have grimaced over before.  Notably, the district court relied on the Ninth Circuit’s opinion in Davidson v. Sprout Foods, 106 4th 842 (9th Cir. 2024) (which we discussed here), but it did not discuss or even cite the earlier Ninth Circuit opinion going the other way, Nexus Pharmaceuticals, Inc. v. Central Admixture Pharmacy Services, Inc., 48 F.4th 1040 (9th Cir. 2022) (discussed here).  In our view, courts should treat private lawsuits framed as enforcing the FDCA as private lawsuits enforcing the FDCA, which federal law prohibits. 

Third, and in the end, it did not really matter because the FDCA expressly preempted all the plaintiff’s claims anyway, although the court did not call it “preemption.”  The FDCA expressly preempts state-law requirements for food labeling that are “not identical” to federal requirements.  Kha, at *9 (citing 21 U.S.C. § 343-1(a)(5)).  Here, the product labeling—including the third-party web listing—complied with federal regulations.  The plaintiff quibbled with the content of the protein disclosures, but that did not matter in the end, either.  The products’ nutritional facts were “readily available and visible on the front-page” of the web listing, and “[r]etailers are not required to expressly direct consumers to nutritional information—whether via a reference mark, dagger, or other instruction—especially when this information is in commonly known and recognizable locations.”  Id. at *10-*11. 

Because the product labeling complied with the FDCA and related regulations, the district court dismissed all the plaintiff’s claims.  Again, the court did not call it express preemption, but we will.  The product labeling complied with federal requirements, so any state-law liability—whether under consumer protection laws, warranty laws, or torts like unjust enrichment—would derive from additional requirements, i.e., requirements that were “not identical” to federal law.  In other words, if the FDA does not require whatever additional protein disclosure the plaintiff wanted, then state law cannot require it either.  That is preemption.