Food Preemption, and Frankenstorm's Coming

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The outdoor furniture is in the garage.  So are the potted plants.  The basketball net, with its 10-foot metal pole and base full of sand, has been pulled down and laid on its side.  Dozens of candles are at the ready, and the bathtubs are filled with water.  The power goes out in this town when it drizzles, and this won’t be drizzle.  So it’s only a matter of time before we'll need those candles.  Frankenstorm is coming.  So we hope you’ll forgive us for a short post today.  It’s kind of appropriate, though, because the court’s opinion n Lateef v. Pharmavite LLC, 2012 U.S. Dist. LEXIS 152528 (N.D. Ill. Oct. 24, 2012), was very short.  It didn’t take long for the court to apply preemption.  The plaintiff was an adherent to religious dietary restrictions that prohibited her from eating pork and pork byproducts.  She bought a bottle of Vitamin D tablets whose label mentioned no animal byproducts.  The tablets, however, did contain small amounts of gelatin, which is made from byproducts of animals, including pig.  So the plaintiff sued, filing a class action complaint asserting breach of warranty, unjust enrichment and violations of Illinois’s Consumer Fraud and Deceptive Business Practices Fraud Act.  So where does the preemption come from?  Well, the FDCA was amended in 1990 by the Nutritional Labeling and Education Act (NLEA), which does just was it says.  It regulates nutrition content claims on food labels.  And it says that “incidental additives,” like the gelatin used in the Vitamin D tablets, which are present in small amounts and provide no technical or functional effect, are exempted from labeling.  Id. at *7-8.  The NLEA also contained an express preemption clause: . . .  no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(1) any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g) of this title . . . .21 U.S.C. §343-1(a)(1) (emphasis added).  That’s about as strong as statutory preemption language gets.  So strong, in fact, that the plaintiff conceded that her claims related to labeling of the gelatin were preempted.  Id. at *9.  Whew!  That was easy.  Well, sort of.  The plaintiff took a shot at saving her complaint.  She asserted that defendant stated on its website that consumers can trust it to identify every ingredient of its products.  Id. at *3-4, 8.  These statements, she claimed, were false, and claims based on them are not preempted because they had nothing to do with the label.  The argument went nowhere.  The court explained that, even though the plaintiff was now pointing to the website, her claim was still based on the fact that the defendant didn’t disclose the gelatin on its label.  Id. at *8-9.  So it was still preempted.  Moreover, the website argument had nothing to do with the plaintiff.  She never said in her complaint that she ever visited, no less than read, the website.  In other words, she had no standing to assert this claim.  Id. at *9-10.  Complaint dismissed.That was a pretty tidy decision.Things around here, on the other hand, are not looking so tidy.  The wind is whipping around now.  And the lights have blinked ominously a couple of times.  It’s on its way.  We’re going to pack up the laptop and turn our attention to Frankenstorm.  We’ll see you on the other side.