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Ninth Circuit revives false advertising suit over chicken

Conagra must provide evidence its labels were approved by federal regulators in order for its preemption defense to fly.

(CN) — Food processing giant Conagra will return to federal court after the Ninth Circuit ruled Tuesday that class action claims of false advertising against the company are not preempted.

Consumer Robert Cohen sued Conagra claiming that the labels advertising “100% natural white meat chicken” mislead purchasers about three synthetic ingredients in the chicken products. A federal judge in the Central District of California dismissed the claims finding the label regulations set by the Poultry Products Inspection Act preempted the suit.

Cohen claims the labels were not properly reviewed and approved by the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS), contending that Conagra bypassed the FSIS approval by utilizing a more generic review regime. The Ninth Circuit agreed there is insufficient evidence that the label received the green light from federal regulators.

“The only evidence before us is the label itself — there are no affidavits or other documentary evidence showing that the label was submitted to and approved by FSIS,” U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, wrote for the panel.

"On behalf of poultry product purchasers, we’re thrilled that this class action is returning to district court," Gretchen Elsner, the lawyer representing Cohen and other class action members, said in an interview. "The Ninth Circuit correctly recognized that a company cannot just assert that its label was approved and then argue that it is entitled to preemption. Instead, trial courts need to evaluate the evidence."

Elsner's statement echoed Bennett's opinion.

“The mere existence of the label is insufficient to establish that it was reviewed and approved by FSIS,” Bennett continued, remanding the issue and placing the burden on Conagra to prove that the labels underwent the correct approval process. “The defendant must produce evidence that the label was reviewed and approved by the FSIS. After all, the defendant producer and not the plaintiff will have access to evidence as to FSIS review and approval of its label. And this is hardly a significant burden.”

The panel — which included fellow Trump appointee U.S. Circuit Judge Ryan Nelson and U.S. District Judge David Ezra, a Ronald Reagan appointee sitting by designation from the District of Hawaii —said the issues at remand should be limited in scope. The parties should only present evidence pertaining to whether FSIS approved Conagra’s label, not whether the FSIS’s approval decision was right or wrong.

If U.S. District Judge David Carter finds the FSIS approved the label, then Cohen’s case is preempted. If the label was not correctly approved, then Cohen’s state claims under California’s Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law can go forward.

Also among the issues the Ninth Circuit decided was whether Cohen’s claims regarding Conagra’s website statements about the chicken products are preempted. The website representations do not have to be approved by the FSIS because federal regulations only require overview of the labels on physical products.

“They’re made with 100% natural, white meat chicken and without preservatives, artificial flavors or artificial colors,” Conagra's website proclaims of its chicken products. Bennett and the panel found second half of the website statement is “materially different from the representation on the label.”

Pointing to the use of the word "and," Bennett said the website shows Conagra claimed the entire product, not just the chicken meat, was free of preservatives, artificial flavors and artificial colors. Consequently, Cohen’s state law claims challenging the website’s description of the chicken products are not preempted.

According to Cohen’s lawsuit, the Conagra’s frozen chicken products contain three synthetic ingredients. These include an ingredient that improves the color of canned foods and a preservative that slows meat spoilage and helps it maintain its color and texture.

This is not Conagra’s first class action dispute over false advertising. Plaintiffs have previously sued the company, claiming they falsely marketed cooking spray as containing no fat or calories, pasta products as having no MSG and vegetable oils containing genetically modified ingredients as “100% natural.”

Attorneys Conagra did not respond to requests for comment.

Categories / Appeals, Consumers, Media

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