Food Label Ruling Shows How To Make Preemption Stick

September 15, 2020Law360

Federal food labeling laws preempt state laws that impose requirements different from or in addition to those established by federal law. In some cases, the U.S. Food and Drug Administration has spoken directly to a labeling issue by regulation, and if the food manufacturer is in compliance with that regulation, any state law liability should be preempted.

Careful plaintiffs often try to draft their allegations to get around a federal regulation that would otherwise preempt their claims. For instance, in challenging a defendant's representations concerning honey in a cereal, a plaintiff avoided the defendant's compliance with the federal labeling regulation on flavoring by alleging she was deceived about the relative amount of honey as a sweetener — which is not covered by a specific FDA regulation — rather than the relative amount of honey as a flavoring agent — which is covered.

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