California’s Sherman Law Partially Preempts Fed NLEA Statutes5 Nov, 2013 By: John Waller, Blank Rome LLP, Jeffrey Richter
In 1990, the U.S. Congress amended the Food, Drug and Cosmetics Act (FDCA) by passing the Nutrition Labeling and Education Act (NLEA). Its stated purpose in doing so was to clarify and strengthen the Food and Drug Administration’s (FDA) authority to require nutrition labeling on foods and to establish the circumstances under which claims may be made about nutrients in food. Part of the NLEA’s purpose was also to create uniform national standards regarding the labeling of food. Private enforcement of the FDCA is not permitted.
The NLEA explicitly states that “no state … may directly or indirectly … establish any requirement … made in the labeling of food that is not identical to” certain requirements under the FDCA. “‘Not identical to’ … means that the State requirement directly or indirectly imposes obligations or contains provisions concerning the composition or labeling of food, or concerning a food container, that: (i) Are not imposed by or contained in the applicable provision … or (ii) Differ from those specifically imposed by or contained in the applicable provision …”
Thereafter, California enacted its Sherman Law, which expressly adopted the foregoing federal labeling requirements as its own. In contrast to the FDCA, California’s Sherman Law, though, does permit private parties to enforce its provisions.
As Congress had already enacted the FDCA before the Sherman Law was enacted, and as the Sherman Law permits private enforcement actions of food labeling requirements that the FDCA does not, readers might reasonably expect that at least the private enforcement portion of California’s Sherman Law would be preempted. However, that issue has now been resolved in favor of permitting private enforcement of those very same food-labeling requirements under the Sherman Law.
When this issue was recently presented in Bruton v. Gerber Products Co., the U.S. District Court for the Northern District of California held that the NLEA does not prohibit states from enacting their own food labeling requirements that are identical to the FDA’s requirements and, in fact, explicitly permits such mirror image state laws unless they are expressly preempted by a provision of the FDCA. Because California’s Sherman Law expressly incorporates the FDCA’s requirements as enacted, the court held that they are permissible. The court further held that because California’s Sherman Law includes permits private enforcement actions, that a private plaintiff can enforce California’s mirror-image food labeling requirements notwithstanding that no private enforcement of the FDCA’s identical requirements is permitted.
While this new decision does not technically change the food labeling requirements that manufacturers must comply with, the ability of private parties to enforce requirements that were previously enforced solely by the FDA is likely to lead to substantial new scrutiny of, and litigation regarding, compliance with food labeling requirements.