Ninth Circuit Takes the Con Out of ConAgra

by Steve Gardner

Yesterday, the Ninth Circuit issued an excellent opinion on the issue of preemption of state law claims for deception involving foods regulated by USDA. Cohen v. ConAgra Brands, Inc.

Robert Cohen sued ConAgra for violations of California consumer laws. As the Court noted:

Cohen began purchasing various frozen chicken products such as chicken nuggets and fried chicken. These chicken products are produced by ConAgra and similarly labeled, with prominent representations on the front of the packaging that read (in capital letters of varying sizes): “Made with 100% Natural White Meat Chicken”; “No Preservatives”; “No Artificial Colors”; “No Added Hormones”; “No Artificial Flavors”; and “0g Trans Fat per Serving.”

Mr. Cohen alleged that the products he bought contained three synthetic ingredients: sodium acid pyrophosphate, sodium tripolyphosphate, and modified corn starch.

ConAgra’s primary defense was that USDA had approved its claims because it had approved its labels.

The district court agreed and held that Mr. Cohen’s claims were preempted.

The Ninth Circuit disagreed, holding that preemption applied to product labels only if USDA had actually approved the labels. It refused to take ConAgra’s word that USDA had approved its labels (because, for some reason, ConAgra did not introduce any evidence of USDA approval).

And, as to claims made on ConAgra’s website, the Ninth Circuit found that USDA preemption did not apply to websites.

In a last-gasp effort, ConAgra tried that old chestnut, the primary jurisdiction doctrine, urging the Ninth Circuit to leave things to USDA because this was a complicated issue. The Ninth Circuit demurred, concluding that it could read words.

Mr. Cohen was well-represented by Gretchen Elsner, supported by amici curiae National Association of Consumer Advocates, Animal Legal Defense Fund, and Food & Water Watch Inc. (I represented NACA but others handled the great bulk of the briefing, especially Kenya J. Reddy, Morgan & Morgan Complex Litigation Group.)

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