United States: Buckman Preemption And Cake

Last Updated: June 20 2017
Article by John Sullivan

Here's the crux of today's case, In re Trader Joe's Tuna Litig., 2017 WL 2408117, at *1 (C.D. Cal. Jun. 2, 2017):

Plaintiffs determined that the Trader Joe's tuna cans were underfilled and underweight by commissioning testing with the U.S. National Oceanic and Atmospheric Administration ("NOAA") on December 1, 2015. NOAA tested several varieties of Trader Joe's tuna according to the FDA's standards for canned tuna, pursuant to 21 C.F.R. § 161.190. This statute determines the standard fill of tuna within a container based on its pressed cake weight.

Even though there's more, we cut this block quote short because we saw the word "cake." It's distracting. Cake has always distracted us. It's a minor miracle that it didn't cause us to simply insert a post-ending ellipsis and begin a blurry daydream about cake, like a daydreaming scene in a movie. The only thing that stopped us was that the block quote also said "tuna." We like tuna just fine. But tuna cake? That's not so enticing.

Unless—apparently—you're a class action plaintiffs' lawyer. Ever in search of financial damages and the type of factual and legal sameness that leads to class certification, pressed cakes of tuna had the plaintiffs' lawyers daydreaming. They dreamed of financial damages for underweighted tuna cans and the necessary sameness created by an FDA regulation that set the standard for weighing them. And so they gathered putative class representatives and filed claims ranging from breach of implied warranty of merchantability, unjust enrichment and fraud to violations of New York General Business Law §§ 349, 350 and violations of the ever-present California Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law. Id.

And, while many of these claims are not typical in product liability litigation, they certainly do implicate defenses that are. The claims are—explicitly—premised on alleged violations of FDA regulations. And that allowed defendants to bring a motion to dismiss asserting a number of very familiar defenses, including implied preemption, conflict preemption, and primary jurisdiction. Id. at *2. For instance, primary jurisdiction was in play because, according to defendants (id. at *1), the FDA was actively considering revising its weight regulation that relied on pressed cake. . . . . . .

. . . Yum, there it is again. Cake. We're imagining it as chocolate cake—with chocolate icing. Better yet, chocolate ganache. That's probably the same as chocolate icing, but it sounds so much tastier. And no "erries"—that means, no blueberries, strawberries, raspberries, or anything like them. They get in the way of the chocolate without being nearly as good. It's fine to include vanilla, preferably as ice cream. But that's it. No other additions. That is, unless we make it a chocolate soufflé—or bread pudding. Or how about a three-course meal of chocolate cake, soufflé and bread pudding . . . . .

Oh, sorry. Back to the law. . . . . .

It wasn't primary jurisdiction that won dismissal. It was implied preemption under Buckman. A reminder on the standard:

The plaintiff must be suing for conduct that violates the FDCA (or else his claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman). Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013) (quoting In re Medtronic, 623 F.3d 1200, 1204 (8th Cir. 2010) (emphasis in original)). Thus, "under principles of implied preemption ... private litigants may not bring a state-law claim against a defendant when the state-law claim is in substance (even if not in form) a claim for violating the FDCA." Loreto v. Procter & Gamble Co., 515 F. App'x 576, 579 (6th Cir. 2013)

Id. at *2.

And there simply was no way for the plaintiffs to get around the fact that they were absolutely suing "because" the underweighting of the tuna cases allegedly violated the FDA regulated testing standard. And so the court dismissed the claims:

In sum, Plaintiffs' claims would not exist without the FDCA. Plaintiffs allege that Trader Joe's misrepresented that its cans contained an adequate amount of tuna . . . . Plaintiffs also maintain that the reason the amount in the tuna cans was inadequate is because it failed to meet the pressed cake weight standard under 21 C.F.R. § 161.190. Consequently, the theory underlying Plaintiffs' state-law claims depends entirely on an FDA regulation. Plaintiffs' state law claims are in reality claimed violations of an FDA regulation, and therefore, the FDCA prohibits Plaintiffs from bringing them. On this basis, the Court GRANTS Defendants' Motion to Dismiss.

Id. at *4.

Piece of cake.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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