United States: Recent Ninth Circuit Decisions In False Advertising Consumer Class Action Cases May Prevent Preemption And Relegate The Primary Jurisdiction Doctrine To Second-Class Status

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth Circuit either rejected or minimized the use of preemption and primary jurisdiction as defenses to allegations of false labeling of food and cosmetics. 

Both of these cases involved allegations of false advertising brought under California's consumer protection statutes, including the Unfair Competition Law and False Advertising Law.  In Reid, the plaintiff alleged that the food product Benecol was falsely advertised because the manufacturer claimed the product (1) had "No Trans Fat" when, in fact, it contained less than 0.5 grams of trans fat per serving, and (2) contained plant stanol esters that could lead to reduced cholesterol.  In Astiana, the plaintiff alleged that the cosmetic products she purchased were falsely advertised as "all natural" or "pure natural" even though they contained chemicals that were, allegedly, not natural.  Both Reid and Astiana filed putative class actions against the defendants, and, in both cases, the defendants successfully moved to dismiss the claims in the district court.  The plaintiffs in both cases appealed, resulting in these opinions.

Reid and Astiana both focus on two separate (though related) arguments often used by defendants in these kinds of cases:  federal preemption and the primary jurisdiction doctrine.  We address each in turn.

Federal Preemption

In its essence, federal preemption holds that, when Congress intentionally creates a law setting forth nationwide standards, states cannot (through their own laws) create separate standards that exceed or conflict with the federal law.  When it comes to food and cosmetics, the applicable law is the Food, Drug, and Cosmetic Act ("FDCA"), which allows the Food and Drug Administration (the "FDA") to promulgate regulations governing how manufacturers must label their products.  A defendant invoking preemption in response to an allegation of false advertising is essentially arguing that, because the advertising satisfies the federal standards established by the FDA, no liability can be imposed through the litigation brought under state consumer protection laws.

The defendants in Reid and Astiana both tried to invoke federal preemption as a defense to the false advertising claims.  The defendant in Reid argued that, because the FDA's regulations allowed a manufacturer to list (in the nutrient box) "zero grams" of trans fat if the product contains less than 0.5 grams of trans fat per serving, it was also permitted to advertise the product as having "No Trans Fat."  Reid, p. 14.  The defendant also argued that, though it was (admittedly) not in compliance with the law regarding labeling of plant stanol esters, the FDA had sent a letter in 2003 to another manufacturer stating it would use its "discretion" in enforcing similar, non-compliant claims.  Reid, p. 16.  In Astiana, meanwhile, the defendant claimed that the FDCA expressly preempted state law regarding cosmetic labeling, making the plaintiff's false advertising claims improper.  Astiana, p. 5.

The Ninth Circuit rejected both preemption arguments for similar reasons.  In Reid, the Court cited several warning letters from the FDA to other manufacturers informing them that claims of "No Trans Fat" or "Trans Fat-Free" were impermissible nutrient claims.  Reid, p. 18.  Also, since the FDCA prohibits "false or misleading" claims (which is identical to the standard imposed by California's false advertising law), there was no preemption issue because advertising something as having "No Trans Fat" when it actually has some trans fat per serving could be false and misleading.  Reid, p. 19.  Additionally, the Court noted that the 2003 letter from the FDA regarding plant stanol esters, which the defendant was relying upon, was insufficient to constitute a ruling from the FDA and, therefore, could not carry the preemptive force of a regulation.  Thus, there was no conflict between federal law and state law regarding these advertisements and, therefore, no preemption.

Similarly, in Astiana, the Ninth Circuit summarily rejected the defendant's argument that "all natural" was a protected phrase under the FDCA.  The Court noted that the FDCA expressly prohibits "false or misleading" advertisements, and, therefore, was consistent with California's false advertising laws.  Astiana, p. 8.  Thus, if the defendant's "all natural" advertisement was false (due to the presence of unnatural chemicals in the cosmetics), then the advertisement was not allowed by the FDCA and, therefore, not immune from California's false advertising statutes.  Astiana, p. 6.

Primary Jurisdiction

The primary jurisdiction doctrine allows district courts, in their discretion, to dismiss or stay cases that involve "technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch."  Astiana, p. 12 (citing Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008)).  The underlying premise is that, if an agency has "primary jurisdiction" over a particular subject matter, the district court should delay deciding the case until the agency rules on the issue.  Through this doctrine, many defendants have been able to stay or dismiss cases alleging false labeling by arguing that the FDA is the agency that can (and should) decide whether any particular advertisement is false.

The defendants in both Astiana and Reid argued that the primary jurisdiction applied to the plaintiffs' claims.  In Reid, the defendants argued that the FDA's expertise was required to resolve the question of whether Benecol's claims regarding trans fat and plant stanol esters were permitted, based on, among other things, the claim that FDA was in the midst of regulatory review of similar issues.  Reid, p. 26.  In Astiana, the district court actually dismissed the case (without prejudice) in light of the defendant's argument that deciding what constitutes "all natural" ingredients required a determination by the FDA and that the FDA was likely to issue such a determination.  Astiana, pp. 12-14.

In both Astiana and Reid, the Ninth Circuit either rejected (or, at a minimum, reduced the impact of) the primary jurisdiction doctrine.  In Reid, the Court decided that the FDA, in 2003, had issued some guidance on the issue of plant stanol esters and was giving no indication that it would revisit the issue now.  Reid, p. 27.  Thus, this was not an issue of "first impression" better left to the FDA to determine and the district court would be able to decide the issue.  Reid, p. 28.  Similarly, through the aforementioned warning letters, the FDA had already considered the issue of "No Trans Fat" or "Trans Fat-Free" claims and found them to be improper.  Reid, p. 27.

In Astiana, meanwhile, the Ninth Circuit reversed the order dismissing the case, finding that the district court should have merely stayed the case pending further guidance from the FDA.  Astiana, p. 12.  The Court held that, given the numerous requests made to the FDA to give guidance on the issue of what constitutes "natural" ingredients for food labeling, it was proper for the district court to invoke primary jurisdiction.  Astiana, p. 14.  However, it was improper to dismiss the case, even without prejudice, given concerns about the running of the statute of limitations.  Astiana, p. 15.  Accordingly, the Ninth Circuit reversed the dismissal and ordered the trial court to reconsider whether the circumstances (including the FDA's publication of certain information or the FDA's response to other courts) "affect the need for further proceedings at the FDA or demonstrate that another referral to the agency would be futile."  Astiana, p. 16.

Taken together, Reid and Astiana limit two of the procedural arguments defendants in food labeling cases often make:  preemption and primary jurisdiction.  That being said, neither case rejects the arguments outright.  Instead, each case demonstrates why, on the particular facts of the case, preemption and the primary jurisdiction doctrine were inappropriate methods to limit the district court's jurisdiction over the false labeling litigation.  Understanding and distinguishing these cases, therefore, will be necessary for any defendants seeking to invoke these arguments in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
30 Jan 2018, Webinar, Los Angeles, United States

Augmented by guest lecturers from government and the private sector, this webinar series will combine teaching of the key rules with war stories from the front lines and practical advice from experienced practitioners.

30 Jan 2018, Webinar, Los Angeles, United States

Liisa Thomas will present “Preparing for a Breach When It Happens” at the Data Privacy & Security Summit 2018 in Washington DC.

1 Feb 2018, Seminar, California, United States

The annual PIHRA Legal Update Seminars provides you with the latest California employment law related updates, compliance and regulatory issues, and the opportunity to network with legal practitioners and HR professionals.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions