Monster Fights S.F. Over|Caffeine in 9th Circuit

     PASADENA, Calif. (CN) – Monster Beverage asked the Ninth Circuit on Wednesday to stop San Francisco from telling it how much caffeine to put in its energy drinks.
     San Francisco City Attorney Dennis Herrera told Monster in 2012 that he was investigating the safety and marketing of its drinks. He demanded that Monster “reformulate its products to safe caffeine levels, provide adequate warning labels, and cease promoting over-consumption.”
     Before the city could sue, Monster sued Herrera and San Francisco in Federal Court, seeking to stop the investigation. It accused Herrera, in his official capacity, of trying to force it into compelled speech, unconstitutional vagueness, and arrogating federal powers to himself.
     “Defendant’s attempt to arrogate to himself the power to determine the content and labeling of plaintiff’s energy drinks and to usurp FDA’s regulatory authority is contrary to well-settled principles of federal preemption and primary jurisdiction,” Monster said in its April 29, 2013 lawsuit in Sacramento Federal Court.
     It sought an order barring Herrera “from enforcing his arbitrary and discriminatory demands.”
     It called Herrera’s demand for a “safe” level of caffeine “hopelessly vague,” and asked why San Francisco singled out Monster, though 16 ounces of Starbucks coffee contains more caffeine than Monster’s products.
     In late 2013, U.S. District Judge Virginia Phillips ruled that the case belonged in state court.
     Citing the Younger doctrine, Phillips said a federal court should abstain from a case if litigation was filed in a state court before the federal court got to the merits.
     Phillips ruled that though Monster filed in Federal Court before Herrera filed in state court, Herrera’s filing came before the federal court could hold a “proceeding of substance on the merits.”
     Food safety is a compelling state interest and it is not “readily apparent” that all of Herrera’s claims are preempted by the federal Food, Drug and Cosmetic Act, the judge found.
     A California court could adequately handle constitutional claims, and under the Anti-Injunction Act, her court will refrain from enjoining a state proceeding in the spirit of comity, equity and federalism.
     On Wednesday, Monster’s attorney told a three-judge panel of Ninth Circuit that Phillips should have exercised federal jurisdiction because the issue at hand it is purely federal.
     “There is a comprehensive set of food safety statutes and regulations. One of those is the Nutrition Labeling and Enforcement Act, which talks about what shows up on a can. But beyond that, Congress has entrusted and authorized the FDA and the FDA alone to police whether or not a product is generally recognized as safe,” Monster attorney Dan Marmalefsky said.
     He called Phillips’s decision to abstain a misapplication of the Younger doctrine. The Ninth Circuit has held that a federal court can abstain only in narrow circumstances, Marmalefsky said: when state interests are vital to operation of the state government. Otherwise the Federal Court is obligated to exercise jurisdiction.
     A citizen can petition the FDA, and Herrera did ask FDA to intervene, but it is up to the FDA to take action he said.
     “You can search every case book: You will not find any reported decision where a court is adjudicating the safety of an ingredient in a food product where the plaintiff is not the United States of America,” Marmalefsky said. “The city attorney does not have the right to bring that claim.”
     But Deputy City Attorney Tara Steeley told the court that a California state court is capable of hearing the case and has jurisdiction.
     “That’s what’s really at stake here: Who gets to hear this case? Who gets to decide? Under Younger and under the AIA, it’s the state court that gets to decide,” Steeley said.
     Prompted by a question from Judge Joseph Farris, Steeley said that Monster could face claims in all 50 states, just like the tobacco industry did.
     The hearing was Marmalefsky’s second Wednesday in back-to-back Monster cases at the Ninth Circuit.
     Earlier, Marmalefsky, with Morrison & Foerster, told the same three appeals judges that a district court had properly dismissed a class action claiming Monster had targeted young people with a false and deceptive energy drink marketing campaign.
     In that argument, Marmalefsky said that caffeine is well understood by the public, having been the subject of scientific and legislative attention “So there is nothing concealed here.”

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