Beveridge & Diamond

California Adopts Narrow View of Implied Federal Preemption of State Law Claims

Beveridge & Diamond, P.C., February 26, 2008

On February 11, 2008 the California Supreme Court issued a unanimous decision in the Farm Raised Salmon Cases holding that certain state law causes of action are not preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”) (21 U.S.C. § 301 et seq.). In these consolidated class action cases, plaintiffs alleged that the failure to warn consumers of the presence of artificial coloring in farm raised salmon violated the state Sherman Food, Drug, and Cosmetic Law (“Sherman Law”) (Cal. Health & Safe. Code § 110660 et seq.) prohibiting misbranding of food, which gave rise to state law claims of unfair competition, deceptive trade practices, false advertising, and negligent misrepresentation. In response, defendant grocers argued -- and the lower courts agreed -- that because the Sherman Law would frustrate the purpose and intent of the FDCA’s own food labeling requirements, the state law claims were impliedly preempted.

As Congressional purpose and intent are key factors in determining implied preemption here, the California Supreme Court focused its analysis on both the FDCA’s statutory language, see 21 U.S.C. §§ 343(k), 343-1(a)(3), as well as its legislative history. Slip Op. at 13-20. The Court found that “while allowing private remedies based on violations of state law identical to the FDCA may arguably result in actions that the FDA itself might not have pursued, Congress appears to have made a conscious choice not to preclude such actions.” Slip Op. at 26. Moreover, where Congress has not expressly limited state remedies, the Court concluded it should not find preemption given the strong presumption against its application in areas historically regulated by the States.  Id.

The California Supreme Court’s rejection of the implied preemption doctrine largely followed the reasoning of recent U.S. Supreme Court cases, Medtronic, Inc. v. Lohr, 518 U.S. 470 (1995) involving the FDCA’s Medical Device Amendment preemption provision, 21 U.S.C. § 360k, and Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) involving the Federal Insecticide, Fungicide, and Rodenticide Act’s preemption provision, 7 U.S.C. § 134v(b).  Slip Op. at 18-19.  Like the FDCA food labeling preemption provision at issue here, the preemption provisions analyzed in both Lohr and Bates prohibited States from passing requirements that were not identical to the relevant federal counterpart. In both cases, the high court found that the federal law at issue did not prevent States from providing state sanctions for violating state rules that duplicated federal requirements.  

Notably, the California Supreme Court did not engage in the “parallel requirement” test created by the Bates Court to determine whether each element of the state law claims alleged, when considered in total, were identical to the FDCA requirements and thus not preempted.  Bates, 544 U.S. at 443-449. Instead, the California Court focused solely on whether the Sherman Law, violation of which is only one element of the underlying state law claims, was identical to the FDCA food labeling requirements. Slip Op. at 7-8. Nor did the Court address whether the imposition of state damage awards could be considered new or additional requirements in violation of the FDCA’s express preemption provision. 

On February 20, 2008, the U.S. Supreme Court reaffirmed its holding in Lohr that States have the ability to provide for separate damages if the state law claims “parallel” but do not add to the federal requirements.  See Reigel v. Medtronic, Case No. 06-179, Slip Op. at 17 (a case involving the FDCA’s Medical Device Amendment preemption provision). The high court, however, declined to specifically address the “parallel requirement” test in Bates because this claim was not raised below.

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