`
`Filed 2/23/21
`
`CERTIFIED FOR PUBLICATION
`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SECOND APPELLATE DISTRICT
`
`DIVISION FIVE
`
`
`
` B291600
`
` (Los Angeles County
` Super. Ct. No. BC588004)
`
`Plaintiff and Appellant,
`
`CAROL LEINING,
`
`
`
`
`
`FOSTER POULTRY FARMS, INC.
`et al.,
`
`
`v.
`
`Defendants and Respondents.
`
`
`APPEAL from a judgment of the Superior Court of Los
`
`Angeles County, John Shepard Wiley, Jr., Judge. Affirmed.
`
`Drinker Biddle & Reath, Sheldon Eisenberg, Ryan M.
`
`Salzman and Mark E. Haddad for Plaintiff and Appellant.
`
`Duane Morris, Michaelle Pardo, Rebecca Bazan and Paul J.
`
`Killion for Defendants and Respondents American Humane
`Association.
`
`
`Mayer Brown, Dale J. Giali, Elizabeth Crepps and Donald
`M. Falk for Defendants and Respondents Foster Poultry Farms,
`Inc.
`
`
`__________________________
`
`
`
`
`
`
`
`
`
`
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`The American Humane Association has created a farm
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`animal welfare program, by which it certifies farm-based food
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`producers who comply with its animal welfare standards. If a
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`producer complies with American Humane’s standards, the
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`producer can use American Humane’s “American Humane
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`Certified” logo on its food, provided it also pays a licensing fee for
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`use of American Humane’s trademark.
`
`
`
`Foster Poultry Farms, Inc. participates in the American
`
`Humane program and uses the American Humane Certified logo
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`on all its chicken products sold in California. Foster Farms must
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`obtain federal approval for the labels of its chicken products, and
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`has obtained that approval for the labels which include American
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`Humane’s logo.
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`
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`Foster Farms charges more for its chicken than other
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`producers whose chicken does not bear the American Humane
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`Certified logo. Plaintiff Carol Leining purchased some Foster
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`Farms chicken, in reliance on the American Humane Certified
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`logo on its label. She believed that the American Humane
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`certification meant that the chicken had been humanely treated;
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`but in this litigation, she alleges that the true facts are American
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`Humane certification means nothing, and Foster Farms’s chickens
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`were treated inhumanely.
`
`
`
`Leining brought suit against Foster Farms for its allegedly
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`misleading labels and against American Humane for its allegedly
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`negligent certification. After extensive litigation, both defendants
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`were granted summary judgment. We affirm, on the basis that
`
`Leining has not pleaded a viable cause of action against either
`
`defendant. The claims against Foster Farms are barred by federal
`
`
`
`2
`
`
`
`
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`preemption, and the negligent certification claim against
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`American Humane is not viable in the absence of physical injury.1
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`FACTUAL AND PROCEDURAL BACKGROUND2
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`1.
`
`
`
`Allegations of the Complaint
`
`American Humane is a non-profit organization. It operates
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`a program called American Humane Certified, which it represents
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`“ ‘provide[s] verifiable assurance to customers and retailers that
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`products carrying the American Humane Certified™ label have
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`met rigorous, science-based animal welfare standards and that
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`the animals in the program were humanely raised.’ ”
`
`
`
`Leining alleges as follows. Foster Farms paid American
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`Humane for the use of its certification. The certification “creates
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`a reasonable expectation among consumers that the chicken they
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`are purchasing is produced under circumstances that would be
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`understood to be humane.” This impression is untrue and Foster
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`Farms’s chickens are instead treated in a manner that “falls well
`
`short of a reasonable consumer’s expectation for humane
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`treatment.” In fact, American Humane certifies chicken produced
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`under the industry’s standard operating procedures, and the birds
`
`
`1
`The two respondents, the American Humane Association
`and Foster Farms Poultry, Inc., have filed joint briefs in this
`appeal. Not all issues raised in the appeal apply to both
`respondents. We generally use the parties’ names to identify
`them and only use “respondents” or “defendants” when the
`discussion applies to both parties.
`
` 2
`
`Because we conclude that, in effect, both defendants were
`
`entitled to judgment on the pleadings, we limit our factual
`discussion to the allegations of Leining’s operative complaint and
`matters of which we can take judicial notice, such as guidelines
`promulgated by federal agencies.
`
`
`
`3
`
`
`
`
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`it certifies are treated no better than any other chicken farmed for
`
`food. Leining bought Foster Farms’s chicken in reliance on the
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`false representation, paying more than the price of other chicken
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`which did not carry the American Humane Certified label.
`
`2.
`
`Foster Farms’s Use of the American Humane Certified
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`Logo for the Sale of Its Chicken is Federally Approved
`
`
`
`All poultry and poultry products sold in the United States
`
`are subject to the Poultry and Poultry Products Inspection Act
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`(PPIA). (21 U.S.C. §§ 451 et seq.) Implementing regulations
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`require that no label may be used on poultry or a poultry product
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`unless it has been pre-approved by the Food Safety and Inspection
`
`Service (FSIS).3 (9 C.F.R. 412.1, subd. (a).)
`
`
`
`A label claim “regarding the raising of animals” is
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`considered a special statement or claim which requires submission
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`of a “sketch” label and approval of that sketch. (9 C.F.R. 412.1,
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`subds. (c)-(e).) Foster Farms submitted its labels for sketch
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`approval; in order to support its use of the American Humane
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`Certified logo, it submitted the certificates of approval it had
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`received from American Humane. The FSIS approved the labels
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`which included the American Humane Certified logo.
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`3.
`
`
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`FSIS Labeling Guidelines
`
`During the time Foster Farms was using the American
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`Humane certification on its label, and well into this appeal,
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`animal welfare advocates were challenging the standards used by
`
`
`3
`There is an exception for “generically approved labels,”
`which are considered preauthorized. (9 C.F.R. 412.2.) The
`exception does not apply in this case.
`
`
`
`
`4
`
`
`
`
`
`FSIS in its approval of labels which claimed the humane
`
`treatment of animals used for food.4
`
`
`
`In December 2019, the FSIS updated its Labeling Guideline
`
`on Documentation Needed to Substantiate Animal Raising Claims
`
`for Label Submission. (<https://www.fsis.usda.gov/wps/wcm/
`
`connect/6fe3cd56-6809-4239-b7a2-bccb82a30588/Raising
`
`Claims.pdf?MOD=AJPERES> [as of Feb. 11, 2021], archived at
`
`<https://perma.cc/LR7E-QMMR>.) The guidelines do not include
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`substantive requirements for a claim of humane animal
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`treatment, but simply require that the label either describe what
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`it means by humane, or, if it uses a third-party certification,
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`contain the certifier’s name, logo, and website. (Id. at pp. 10-11,
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`15.)
`
`
`
`The FSIS responded, via the Federal Register, to a number
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`of the comments it had received on its prior guideline, which had
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`been published in 2016. (84 FR 71359; see 81 FR 68933.) Of
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`
`4
`The issue was raised as early as May 2014, when the
`Animal Welfare Institute submitted a petition for rulemaking,
`asking the FSIS to create a rule mandating that any label claims
`of humane animal treatment, and other animal raising claims, be
`supported by third-party certification, from certifiers who audited
`according to published standards which exceeded conventional
`industry practices. (<https://www.fsis.usda.gov/wps/wcm/connect/
`5bdab0ca-8072-480b-9bd9-c9bc04b56531/Petition-AWI-Labeling-
`0514.pdf?MOD=AJPERES> [as of Feb. 11, 2021], archived at
`<https://perma.cc/5C3B-39QH>.) The petition would ultimately be
`denied in February 2019. (<https://www.fsis.usda.gov/wps/wcm/
`connect/ed11c92b-d0f8-4208-bae6-2e633bb49b37/14-01-FSIS-
`Final-Response-022219.pdf?MOD=AJPERES> [as of Feb. 11,
`2021], archived at <https://perma.cc/ZS9S-4W86>.)
`
`
`
`
`5
`
`
`
`
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`particular relevance, the FSIS had received comments from
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`animal welfare advocacy organizations and individuals who took
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`the position that FSIS “currently approves claims based on
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`standards that do not meet consumer expectations. To address
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`these concerns, the comments . . . stated that FSIS should only
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`approve animal welfare and environmental stewardship claims
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`that have been certified by an independent third-party certifying
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`organization that has established standards that exceed the
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`conventional industry standards defined by meat and poultry
`
`trade associations.” (84 FR 71362.) FSIS disagreed, explaining,
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`“The issues raised in the comments . . . show that consumers,
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`producers, and certifying entities have different views on the
`
`specific animal production practices that should be associated
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`with certain animal welfare or environmental stewardship claims.
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`Thus, because animal welfare or environmental stewardship
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`claims mean different things to different people, a claim that is
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`defined by a specific third-party certifying organization’s animal-
`
`raising standards cannot reflect the diverse views associated with
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`these types of claims.” (84 FR 71362-71363.)
`
`
`
`With respect to third-party certification, FSIS explained, “If
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`the claim is certified by a third-party certifying organization, FSIS
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`will approve the label bearing the claim if it includes the
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`certifying entity’s name, website address, and logo, when the
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`organization has a logo, as described in the guideline. Under this
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`approach, the labeling of a meat or poultry product that bears an
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`animal welfare or environmental stewardship claim includes the
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`information that consumers need to determine whether the
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`animal-raising practices used to define a particular animal claim
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`meets their expectations for the claim.” (84 FR 71363, fn.
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`omitted.)
`
`
`
`6
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`
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`There is no dispute that FSIS approved Foster Farms’s
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`labels containing the American Humane logo. Leining does not
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`allege that Foster Farms was ever out of compliance with the
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`FSIS’s governing guidelines.
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`4.
`
`
`
`Plaintiff’s Initial Complaint
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`On July 13, 2015, Leining filed her class action complaint,
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`initially naming only Foster Farms as a defendant. She alleged
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`that Foster Farms’s use of the American Humane Certified logo
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`on its labels was deceptive and misleading because her
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`“objectively reasonable” understanding of the certification was
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`that the chickens used by Foster Farms “were afforded a
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`comfortable existence and a quick and painless death.” She would
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`not have purchased the chicken had she known that Foster
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`Farms’s chickens “were not in fact treated humanely, or even
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`significantly differently from most other chickens on the market.”
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`She alleged causes of action for unfair competition, negligent
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`misrepresentation, breach of express warranty, and breach of the
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`implied warranty of merchantability – all on the theory that the
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`label itself was deceptive because the chicken was not produced
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`under humane circumstances.
`
`5.
`
`
`
`Foster Farms’s Initial Demurrer
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`Foster Farms demurred. The demurrer is not part of the
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`record on appeal, but we do have the court’s ruling sustaining the
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`demurrer with leave to amend. The trial court was concerned
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`that Leining was attempting to appoint herself arbiter of what is,
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`or is not, humane. It explained, “Leining’s complaint has no legal
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`basis. Leining cites no case in which a producer complied with
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`third party standards but was found guilty of misrepresentation
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`or breach of warranty because, in someone’s opinion, the third-
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`party standards were lax.” However, the court believed Leining
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`
`
`7
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`
`
`
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`might be able to state a claim under a different theory, and drew
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`the parties’ attention to Hanberry v. Hearst Corp. (1969)
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`276 Cal.App.2d 680 (Hanberry), a case which held that, under
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`certain circumstances, a plaintiff physically injured by a product
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`may be able to state a claim in negligent misrepresentation
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`against a third party who had endorsed the product.
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`6.
`
`
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`Leining’s Operative Complaint
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`The operative complaint is Leining’s first amended
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`complaint. Leining re-alleged her causes of action against Foster
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`Farms for unfair competition, negligent misrepresentation, breach
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`of express warranty, and breach of the implied warranty of
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`merchantability. She reasserted her original theory of relief
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`supporting each of these causes of action—that her objectively
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`reasonable understanding of the American Humane Certified logo
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`on the label was that Foster Farms’s chickens had been afforded a
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`comfortable existence and a quick and painless death, but this
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`was untrue.
`
`
`
`In accordance with the trial court’s suggestion, Leining also
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`added American Humane as a defendant, and alleged against it a
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`cause of action for negligent misrepresentation. Leining
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`specifically alleged that American Humane either made no
`
`examination of whether Foster Farms’s chickens were humanely
`
`raised according to science-based standards or, if any examination
`
`had been performed, it was careless and negligent.
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`7. Demurrers to the Operative Complaint
`
`
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`Both Foster Farms and American Humane demurred.
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`Foster Farms argued, among other things, federal preemption, in
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`that all of the causes of action against it were based on its labels,
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`which had been approved by the FSIS. American Humane
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`demurred as well, arguing that Hanberry was inapplicable in the
`
`
`
`8
`
`
`
`
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`absence of physical injury, and that, in any event, its certification
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`was not false.
`
`
`
`The trial court overruled both demurrers. The court
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`continued to believe that Leining had not properly alleged a cause
`
`of action for direct liability on the merits against Foster Farms.
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`However, it concluded that Leining could pursue her cause of
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`action for negligent misrepresentation against American Humane,
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`due to her allegation that American Humane issued its
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`certification based on a careless or negligent investigation. It
`
`reasoned that this theory could also support relief against Foster
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`Farms.
`
`
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`Because the court believed the only validly pleaded theory
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`was what it deemed “fraudulent licensing,” the court suggested
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`American Humane and Foster Farms move for summary
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`judgment, by presenting evidence that American Humane’s
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`certification was actually based on a reasonable investigation and
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`legitimate standards.
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`
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`After answering the complaint, Foster Farms and American
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`Humane together moved for summary judgment on the grounds
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`suggested by the trial court.
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`8. Defendants’ Motion for Summary Judgment
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`
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`Defendants directed their summary judgment motion to the
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`fraudulent licensing theory the trial court concluded had defeated
`
`their demurrers. Defendants presented the details of American
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`Humane’s certification program, including that its standards were
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`established by its Scientific Advisory Board, and that its audit
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`process objectively determined compliance.
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`
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`Defendants also argued that Leining’s entire complaint was
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`barred by express preemption under the PPIA.
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`
`
`9
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`
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`
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`9.
`
`
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`Leining’s Opposition
`
`Leining opposed summary judgment on the merits, raising a
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`number of issues with American Humane’s standards, its
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`relationship with Foster Farms, and the procedure by which it
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`conducted its audits.
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`
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`As to federal preemption, Leining argued that label pre-
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`approval is not sufficient to trigger preemption.
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`10. Trial Court’s Ruling
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`
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`The court concluded defendants had met their initial burden
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`of establishing that American Humane’s certification was
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`independent, reasonable, and involved some level of expertise.
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`The court then considered, and rejected, each of plaintiff’s
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`counter-arguments which purportedly raised a triable issue of
`
`fact. Judgment was entered for defendants. Leining filed a timely
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`notice of appeal.
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`
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`On appeal, the parties briefed the merits of the trial court’s
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`summary judgment ruling. In the combined respondents’ brief,
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`Foster Farms argued that summary judgment in its favor could be
`
`affirmed on the basis of federal preemption. We sought additional
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`briefing on the issue which had been raised by American
`
`Humane’s demurrer – whether a cause of action could be asserted
`
`against it under Hanberry in the absence of physical injury.
`
`DISCUSSION
`
`
`
`We conclude we need not decide whether there are triable
`
`issues of fact that would defeat summary judgment. Instead, we
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`first address Foster Farms’s federal preemption argument, and
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`conclude the complaint against it, based on its purportedly
`
`misleading labels, is barred by federal law. Next, we consider
`
`whether a Hanberry cause of action for negligent
`
`misrepresentation can be asserted against a certifier of a product
`
`
`
`10
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`
`
`
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`in the absence of physical injury. We conclude that it cannot.
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`Therefore, we affirm the judgment in favor of defendants.
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`1.
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`
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`Standard of Review
`
`Although this case proceeded to summary judgment, we find
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`it unnecessary to review the trial court’s ruling on the substantial
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`factual record presented by the parties. When a motion for
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`summary judgment presents the argument that the plaintiff
`
`cannot state a cause of action, we review the issue as a matter of
`
`law de novo. (Aetna Health Plans of Cal., v. Yucaipa-Calimesa
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`Joint Unified Sch. Dist. (1999) 72 Cal.App.4th 1175, 1186-1187.)
`
`We review the sufficiency of Leining’s complaint, as we would on
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`demurrer or judgment on the pleadings. “ ‘We treat the demurrer
`
`as admitting all material facts properly pleaded, but not
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`contentions, deductions or conclusions of fact or law. [Citation.]
`
`We also consider matters which may be judicially noticed.’
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`[Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
`
`2.
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`Federal Preemption Bars the Claims Against Foster
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`Farms
`
`
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`Each of Leining’s direct causes of action against Foster
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`Farms is based on the premise that its labels’ inclusion of the
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`American Humane Certified logo was itself misleading, because
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`the chicken was not treated in a manner that an objectively
`
`reasonable consumer would consider humane.
`
`
`
`We conclude that these causes of action are barred by the
`
`doctrine of federal preemption, based on the express preemption
`
`clause of the PPIA. The Foster Farms labels, inclusive of the
`
`American Humane Certified logo which Leining alleges is
`
`misleading, were pre-approved by the FSIS, in accordance with
`
`the PPIA.
`
`
`
`11
`
`
`
`
`
`
`
`Federal preemption principles derive ultimately from our
`
`national Constitution. “ ‘The supremacy clause of the United
`
`States Constitution establishes a constitutional choice-of-law rule,
`
`makes federal law paramount, and vests Congress with the power
`
`to preempt state law.’ [Citations.] Similarly, federal agencies,
`
`acting pursuant to authorization from Congress, can issue
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`regulations that override state requirements. [Citations.]
`
`Preemption is foremost a question of congressional intent: did
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`Congress, expressly or implicitly, seek to displace state law?
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`[Citation.] [¶] We have identified several species of preemption.
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`Congress may expressly preempt state law through an explicit
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`preemption clause, or courts may imply preemption under the
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`field, conflict, or obstacle preemption doctrines. [Citations.]”
`
`(Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 307-
`
`308.)
`
`
`
`We are here concerned with express preemption. “Where
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`the federal statute contains an express preemption clause, we
`
`must determine the substance and scope of the clause. [Citation.]
`
`In so doing, we assume ‘that the historic police powers of the
`
`States were not to be superseded by the Federal Act unless that
`
`was the clear and manifest purpose of Congress.’ [Citation.] And
`
`finally, ‘when the text of a pre-emption clause is susceptible of
`
`more than one plausible reading, courts ordinarily “accept the
`
`reading that disfavors preemption.” ’ [Citation.]” (Ass’n des
`
`Eleveurs de Canards et d’Oies du Quebec v. Becerra (9th Cir. 2017)
`
`870 F.3d 1140, 1146.)
`
`
`
`Our preemption inquiry starts with the applicable federal
`
`law. The PPIA forbids the sale, or the offering for sale, of any
`
`poultry or poultry product “under any name or other marking or
`
`labeling which is false or misleading . . . .” (21 U.S.C. § 457(c).) If
`
`
`
`12
`
`
`
`
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`the Secretary of the USDA has “reason to believe” any labeling is
`
`false or misleading, the Secretary may direct that it not be used.
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`The poultry producer may request a hearing to challenge the
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`determination, which is conclusive absent a direct appeal to the
`
`federal Court of Appeals. (21 U.S.C. § 457(d).) Similarly, a
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`poultry product is considered “misbranded” if its labeling “is false
`
`or misleading in any particular.” (21 U.S.C. § 453(h)(1).) Sale of
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`misbranded poultry is punishable by fine or imprisonment.
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`(21 U.S.C. § 461.) District courts are vested with jurisdiction to
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`enforce and restrain violations of the PPIA. (21 U.S.C. § 467c.)
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`All proceedings “for the enforcement or to restrain violations of
`
`this chapter shall be by and in the name of the United States.”
`
`(Ibid.)
`
`
`
`The preemption clause is contained in 21 United States
`
`Code section 467e. That section provides, in pertinent part,
`
`“Marking, labeling, packaging, or ingredient requirements . . . in
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`addition to, or different than, those made under this [chapter]
`
`may not be imposed by any State or Territory or the District of
`
`Columbia with respect to articles prepared at any official
`
`establishment[5] in accordance with the requirements under this
`
`[chapter], but any State or Territory or the District of Columbia
`
`may, consistent with the requirements under this [chapter]
`
`exercise concurrent jurisdiction with the Secretary over articles
`
`required to be inspected under this [chapter] for the purpose of
`
`
`5
`An “official establishment” is “any establishment
`determined by the Secretary at which inspection of the slaughter
`of poultry, or the processing of poultry products, is maintained
`under the authority of this [chapter].” (21 U.S.C. § 453(p).) The
`parties do not raise any legal issues related to “official
`establishment.”
`
`
`
`13
`
`
`
`
`
`preventing the distribution for human food purposes of any such
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`articles which are adulterated or misbranded and are outside of
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`such an establishment, or, in the case of imported articles which
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`are not at such an establishment, after their entry into the United
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`States.”
`
`
`
`Foster Farms argues that Leining’s complaint against it is
`
`preempted under the first clause as imposing a labeling
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`requirement in addition to, or different than, those required under
`
`the PPIA. Leining responds that, in challenging the label as
`
`misleading, she is not seeking to impose a different requirement
`
`than the PPIA, and therefore falls under the second, concurrent
`
`jurisdiction, clause.
`
`
`
`Foster Farms has the better argument. Because the labels
`
`were pre-approved by the FSIS, the federal government has
`
`determined that the labels, which include American Humane
`
`certification, are not misleading under the PPIA. If Leining were
`
`to prevail on her tort claims that the labels were nonetheless
`
`misleading, California courts would be imposing an additional
`
`requirement to those imposed by the PPIA. Numerous courts
`
`addressing similar contentions under the PPIA have reached this
`
`conclusion. (Kuenzig v. Hormel Foods Corp. (11th Cir. 2013)
`
`505 Fed.Appx. 937, 938 [plaintiffs’ claim that defendant misled
`
`consumers by listing caloric amounts and fat-free percentages
`
`adjacent to each other on lunch meats was preempted as imposing
`
`an additional requirement on labels already approved under the
`
`PPIA];6 Nat’l Broiler Council v. Voss (9th Cir. 1994) 44 F.3d 740,
`
`
`6
` Federal nonpublished opinions, such as Kuenzig v. Hormel
`Foods Corp., supra, 505 Fed.Appx. at page 938, may be cited by
`California state courts. (City of Hawthorne ex rel. Wohlner v.
`
`
`
`
`14
`
`
`
`
`
`745-746 [California statute defining when wholesalers can use the
`
`word “fresh” on poultry imposes a requirement in addition to the
`
`USDA’s definition of “fresh” and is therefore preempted]; Webb v.
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`Trader Joe’s Co. (S.D. Cal. 2019) 418 F.Supp.3d 524, 529, app.
`
`pending [plaintiff’s claim that defendant’s poultry products are
`
`mislabeled to the extent they claim “up to 5% retained water”
`
`would impose a requirement in addition to the PPIA on pre-
`
`approved labels and is therefore preempted]; La Vigne v. Costco
`
`Wholesale Corp. (S.D.N.Y. 2018) 284 F.Supp.3d 496, 508-511
`
`[plaintiffs’ claim that Costco canned chicken is mislabeled because
`
`it fails to disclose the proper percentage of broth would impose a
`
`requirement in addition to the PPIA-pre-approved label and is
`
`therefore preempted]; Shin v. Campbell Soup Company (C.D. Cal.
`
`2018) 2018 WL 6164264, *3 [plaintiff’s claims that the labels of
`
`defendant’s chicken soups are misleading when they assert “25%
`
`less sodium” or “98% fat free” are preempted because they seek to
`
`impose labeling requirements different than those mandated by
`
`the PPIA]; Phelps v. Hormel Foods Corp. (S.D. Fla. 2017)
`
`244 F.Supp.3d 1312, 1314-1317 [plaintiff’s claim that “100%
`
`Natural” and “No Preservatives” statements on labels are
`
`misleading would impose an additional requirement when the
`
`labels had been pre-approved by the FSIS]; Brower v. Campbell
`
`Soup Co. (S.D. Cal. 2017) 243 F.Supp.3d 1124, 1126-1127
`
`[plaintiff’s claim that defendant’s soup was misleadingly labeled
`
`as “healthy” and indicated it was certified by the American Heart
`
`Association without explaining that defendant had paid for that
`
`certification was preempted because it sought to impose additional
`
`H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5; see
`Cal. Rules of Court, rule 8.1115.)
`
`
`
`
`
`15
`
`
`
`
`
`labeling requirements to a label pre-approved by the FSIS];
`
`Grocery Mfrs. Ass’n v. Sorrell (D.Vt. 2015) 102 F.Supp.3d 583, 620
`
`[Vermont statute which prohibits labeling genetically engineered
`
`foods as “natural” imposes a different requirement and is
`
`therefore preempted to the extent it applies to food subject to the
`
`PPIA; related factual issues preclude dismissal]; Meaunrit v.
`
`ConAgra Foods Inc. (N.D. Cal. 2010) 2010 WL 2867393, *7
`
`[plaintiff’s claim that preparation directions on chicken pot pie
`
`label are inaccurate is preempted as imposing an additional claim
`
`on a label pre-approved by the FSIS]).
`
`
`
`Of particular significance is Arnold v. Kroger (Ohio App.
`
`2016) 45 N.E.3d 1092, in which the plaintiffs alleged that the
`
`defendant’s “Simple Truth” brand chicken had labels which falsely
`
`and misleadingly claimed the “chicken was ‘raised in a humane
`
`environment’ and/or ‘humanely raised.’ ” (Id. at pp. 1092-1093.)
`
`The plaintiffs alleged, much as Leining does here, that the labels
`
`were misleading, because the chickens were “raised no differently
`
`than any other chicken mass produced by its supplier, Perdue.”
`
`(Id. at p. 1093.) The trial court dismissed the plaintiffs’ causes of
`
`action alleged under state consumer protection laws and common
`
`law torts because they were preempted by the PPIA. (Ibid.) The
`
`plaintiffs appealed, arguing that the FSIS does not “review the
`
`meaning of claims regarding the humane treatment of animals.”
`
`(Ibid.) The appellate court affirmed. The FSIS had approved the
`
`labels and determined that they were not false or misleading.
`
`Therefore, any liability the plaintiffs sought to impose based on
`
`their state law claims would in essence attach additional or
`
`different terms to the defendant’s labeling. (Id. at p. 1094.)
`
`
`
`Against this overwhelming weight of authority, Leining
`
`offers no authority that a labeling claim is was not preempted
`
`
`
`16
`
`
`
`
`
`under the PPIA. Instead, she argues that her claim falls under
`
`the concurrent jurisdiction provision of the PPIA’s preemption
`
`clause, by citing to cases discussing concurrent jurisdiction under
`
`other statutes.7 (See, e.g., Bates v. Dow Agrosciences LLC (2005)
`
`544 U.S. 431, 434 [the Federal Insecticide, Fungicide, and
`
`Rodenticide Act [FIFRA] did not preempt equivalent state labeling
`
`laws; only state laws that were “in addition to or different from”
`
`the federal labeling and packaging rules were preempted];
`
`Medtronic, Inc. v. Lohr (1996) 518 U.S. 470 [same test under the
`
`Medical Device Amendments of 1976]; Quesada v. Herb Thyme
`
`Farms, Inc., supra, 62 Cal.4th at pp. 308-310 [the Organic Foods
`
`Production Act of 1990 ‘‘permits states to adopt more stringent
`
`standards governing organic production”].) Yet these cases
`
`recognize that while state law remedies to enforce the federal
`
`standards are not preempted, additional labeling requirements
`
`are. “In sum, under our interpretation, [the preemption clause of
`
`7
`The one PPIA case on which she relies is Association des
`Eleveurs de Canards et d’Oies du Quebec v. Becerra, supra,
`870 F.3d at page 1143, which held that the PPIA did not preempt
`a California statute banning the making of foie gras by force-
`feeding poultry. Because the California statute addressed the
`making and sale of foie gras, but not its labeling, PPIA label
`preemption was not at issue. In finding the California law was
`not preempted, the Ninth Circuit held that nothing in the
`challenged state statute “interferes with the USDA’s ‘authority to
`inspect poultry producers for compliance with health and sanitary
`requirements, require[ ] inspection of poultry after slaughter,
`establish[ ] labeling requirements for poultry products, [or] allow[ ]
`for withdrawal of inspections for noncompliance and the
`imposition of civil and criminal penalties for the sale of
`adulterated products.’ [Citation.]” (Id. at p. 1153.)
`
`
`
`
`17
`
`
`
`
`
`FIFRA] retains a narrow, but still important, role. In the main, it
`
`pre-empts competing state labeling standards—imagine 50
`
`different labeling regimes prescribing the color, font size, and
`
`wording of warnings—that would create significant inefficiencies
`
`for manufacturers. The provision also pre-empts any statutory or
`
`common-law rule that would impose a labeling requirement that
`
`diverges from those set out in FIFRA and its implementing
`
`regulations. It does not, however, pre-empt any state rules that
`
`are fully consistent with federal requirements.”8 (Bates v. Dow
`
`Agrosciences LLC, supra, 544 U.S. at p. 452, fn. omitted.)
`
`
`
`Cases interpreting the PPIA have acknowledged the
`
`identical distinction. While additional labeling claims are
`
`preempted, concurrent jurisdiction permits States to impose
`
`additional remedies for violations of the PPIA. (E.g., La Vigne v.
`
`Costco Wholesale Corp., supra, 284 F.Supp.3d at pp. 508-510; Shin
`
`v. Campbell Soup Company, supra, 2018 WL 6164264 at *4.)
`
`
`
`According to its legislative history, one of the key purposes
`
`of the PPIA preemption clause “was to ensure national uniformity
`
`in labeling.” (Nat’l Broiler Council v. Voss, supra, 44 F.3d at
`
`p. 744.) This purpose would be defeated if states could, via tort
`
`law or otherwise, impose additional labeling requirements on
`
`8
`That is so because “a state cause of action that seeks to
`enforce a federal requirement ‘does not impose a requirement that
`is “different from, or in addition to,” requirements under federal
`law. To be sure, the threat of a damages remedy will give
`manufacturers an additional cause to comply, but the
`requirements imposed on them under state and federal law do not
`differ. [The preemption clause] does not preclude States from
`imposing different or additional remedies, but only different or
`additional requirements.’ [Citation.]” (Bates v. Dow Agrosciences
`LLC, supra, 544 U.S. at p. 448, bracketed modification ours.)
`
`
`
`18
`
`
`
`
`
`labels already approved under the PPIA. Leining’s causes of
`
`action against Foster Farms challenge Foster Farms’s federally-
`
`approved labels and effectively seek to impose additional labeling
`
`requirements. Those claims are preempted by the PPIA.
`
`
`
`Our conclusion is confirmed by the FSIS’s discussion of
`
`public comments in the evolution of its Labeling Guideline on
`
`Documentation Needed to Substantiate Animal Raising Claims
`
`for Label Submission. Animal welfare advocates had specifically
`
`requested the FSIS only approve third-party certifications from
`
`entities with stricter standards than conventional industry
`
`practices. FSIS refused. It concluded that different claims meant
`
`different things to different people, and that it would approve a
`
`label contai
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