ConAgra's Pre-Emption Defense Spit Out of 9th

     (CN) - Though the shells of David-brand sunflower seeds are inedible, ConAgra Foods may still have to disclose how much sodium their flavorful coating contains, the 9th Circuit ruled Thursday.
     California resident Aleta Lilly hopes to represent a class against the packaged food giant under various state consumer laws. She claims that ConAgra must disclose on its packaging the sodium content of the seed coating, which comes in a variety of flavors, since it is meant to be ingested.
     She pointed out that the instructions on the popular David brand sunflower seeds tell consumers to crack the shell with their teeth and spit out the shell. Following these directions, the consumer cannot help but to ingest the outer coating, she claimed.
     ConAgra moved to dismiss the complaint based on federal pre-emption, arguing that Lilly's state-law claims sought to impose labeling requirements other than those mandated by the Food and Drug Administration.
     U.S. District Judge R. Gary Klausner agreed and dismissed the putative class action in Los Angeles, but an appellate panel revived Lilly's claims, 2-1, on Thursday.
     ConAgra had argued that the shell and its coating are "inedible" and therefore need not be represented on labels, as the FDA does not require companies to list the sodium levels of such "inedible components."
     The appeals court rejected this argument, countering that it failed to make a distinction between the shell and the coating.
     "ConAgra's argument simply ignores the fact that while the shells themselves are inedible, the coatings put on top of the shells most certainly are not inedible," Judge Barry Silverman wrote for the majority. "To the contrary, the coatings impart flavor and are indisputably intended to be ingested as part of the sunflower seed eating experience. Indeed, these coatings come in flavors such as 'Ranch' and 'Nacho Cheese' precisely because they are to be consumed before the shell is discarded. The shell is not edible, but the coating is and is intended to be. Federal law requires that the sodium listings include the 'edible portion' of a food. For that reason, the portion of the edible coating on the shell must be accounted for in the calculation of the sodium content. The asserted state law requirements that Lilly seeks to impose here are thus no different from federal law and not preempted."
     U.S. District Judge C. Roger Vinson, who sat on the panel by designation from the Northern District of Florida, wrote in dissent that it was not the panel's job to determine the edibility of the coating.
     "Although we might prefer a regulation that includes the shell's absorbed salt and to draw a distinction between an edible 'coating' and an inedible shell, we are nonetheless bound to apply this unambiguous regulation objectively as it has been written," he wrote. "In my view, it is not currently written to allow such a nuanced distinction. The FDA could, of course, have drafted the regulation in any detail that it wanted (and it could still do so now), making distinctions such as the one favored by the majority today." (Parentheses in original.)